Can you give me the text of the 10th that says the text of the Constitution should be construed strictly? Or are you going with a loose interpretation of the 10th that is broader than a strict reading of the text can support?
The Art of Constitutional Interpretation
- Thread starter GhostWriter16
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GoodGame
Red, White, & Blue, baby!
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I think as a matter of practicality, the Constitution is interpreted loosely with a focus on intent of the original authors (so a focus on studying the history and circumstance of the Constitution), because government is uninterested in adding amendments, and prefers to add laws instead to avoid tests of the Consitution. Most of the bill of rights are interpreted to preserve rights to citizens, but not to grant any citizen the power to overthrow the state, nor to reduce the rights of other citizens. Also, there's something like one or fewer amendments added per decade, with much more emphasis on the Code of Federal Regulations. I consider this well and good.
Taking a strict, literalist interpretation of the Constitution would require updating amendments for semantics, circumstance, and for the excessive use of punctuation (commas).
Exactly! You can't decide how to interpret the constitution by interpreting the constitution.
That's true, but that's not the subject of this topic
warpus
Sommerswerd asked me to change this
Interpret your constitution however you like, but if you end up with a conclusion that isn't good for the country, then you're interpreting wrong, or there's something wrong with the constitution in the first place.
To a textualist, the Amendment should trump the Article (since the Amedndment is later is time), but there is some common sense loose interpretation that goes on (the 1st Amendment does not trump the treason and copyright clauses).
GhostWriter16
Deity
So prohibition still applies, by that "Logic?"
Prohibition no longer applies because there is a subsequent Amendment. Given that this is the Chamber, I expect an apology for you putting logic in quotes like that.
But explain to me how as a textualist, how you feel about treason and copyright laws being on the books. Are they unconstitutional? If not, explain how, as a textualist. you reach the conclusion that they are constittional.
MagisterCultuum
Great Sage
Wouldn't it be nice if it did though?
LucyDuke
staring at the clock
That's not how joke options work.
GhostWriter16
Deity
A textualist, according to your explanation, would believe that a later amendment trumps an earlier one, which implies to me that a non-textualist would reject that premise.
As for the "Logic" being in quotes, I felt that if I didn't do so I could be assumed to be agreeing with the logic. I didn't think through the other implications though, so yes, if that was offensive or out of line I apologize.
I'm not sure about the copyright clause, but if I recall correctly, "Treason" was made pretty specific so that it wouldn't contradict the general right of freedom of speech, in other words, treason applies in very specific cases and its made clear that freedom of speech is the rule anywhere else. I don't necessarily see a problem with that, as long as "Treason" doesn't apply to state governors or state militias, who I would argue CAN'T commit treason since they actually are the pieces that make up the puzzle of the US, and can legally remove their pieces at any time.
Why would you assume that textualists and non-texualists disagree on an unrelated aspect of interpretation?
MagisterCultuum
Great Sage
US Constitution said:
Free speech really should not be able to qualify as treason, although there are some who interpret the text less strictly might consider some speech to be giving enemies aid and comfort.
Generally that would be termed Sedition rather than treason though. The first amendment most certainly should invalidate legislation like the Alien and Sedition Acts.
Federalists like John Adams showed great disdain for the bill of rights (which of course had been pushed primarily by their political rivals, the Anti-Federalists, who had a very different view of the role of government) in supporting such legislation. They went so far as imprisoning people (including congressmen) and forcing them to pay fines worth over $70,000 in today money just for criticizing the president. This is a case where judicial review probably should have been used to overturn the statute, but the supreme court never heard the cases. (Instead judicial review was established after the Federalist court packing, in a case where Marshall's ruling made no sense in the light of the clauses immediately before and after those on which he focused.)
The acts were extremely unpopular and were the main reason why the Federalists lost control of the government (except the Judicial branch, which they packed with as many of their cronies as possible) in 1800. The Democratic-Republicans didn't actually overturn the laws either though, they just let them expire after pardoning those who had been convicted under the Federalists and then using them against their own political rivals for a time.
I hadn't really thought of it like this before, but it really does seem like freedom of the press ought to overrule the authority of congress to grant the legal monopoly of copyright protections. Copyrights did originate explicitly as a tool of censorship. (Plus, of course, there is good reason to believe that in their current form they hinder the progress of science and useful arts far more than they promote them.)US Constitution said:
GhostWriter16
Deity
I think that premise (That speech can be giving enemies' "Aid and comfort") to be pretty absurd. Even saying "Go Osama Bin Laden" wouldn't really apply because its not really aiding him in any tangible way (Yes, I know he's dead, dead guys make better examples
)I've always thought this was so obvious I didn't get how someone living so close to the bill of rights passing could have gotten it wrong. The reality, as you say, is probably that he didn't care. Kudos to Jefferson and Madison for fighting against it.
Unfortunately the early governments existed in a time of kings and dictators, and the United States government was really the first of its kind, even though the President and Senate weren't democratically elected. The Founding Fathers had a vision for how it could work, but then found it inconvenient when they took power. I'd insist, in spite of the arguable compromise with the Louisiana Purchase, that Jefferson was the lone, glaring exception. And in his case, it was actually a COMPROMISE, with debatable constitutional legality. I think I would consider buying land to be a treaty, at least of sorts, although I do agree a clearer amendment would have been better. The Alien and Sedition Acts, on the other hand, aren't even debatable, nor is the modern Patriot Act.
I think they really could have gotten better, but John Marshall screwed us over way too much. Sometimes I really do wish the South won....
When did Jefferson and Madison actually use those laws? Admittedly that's not something I've ever heard before.
Since the first amendment comes later, it would trump any article that contradicts it, I agree. That said, how exactly does copyright work? I don't see freedom of the press as giving a right to steal stuff from other people, although that would depend on how its applied. If I write and publish a book, I don't want someone else selling it and taking the money.
Welcome aboard to non-textualism.
It boils down to the merrit of statutory law vs common law. A looser interpretation of the constitution results in more common law, and a stricter interpretation amounts to tieing the hands of the Judiciary and diminished the ability to judge with equity and fairness.
The idea of statutory law is simpler and it's theoretical merits are plainer. By having a codified law, it is easier to claim that people accountable to know and therefore follow the law. The legislative body is specifically chosen and tasked with making law, which hopefully ensures they are the most qualified people to do it. Though common law is codified, it is not codified as plainly. You need lawyers to identify that a particular judgment qualifies as president, and the sum off possible cases that could be legal precedent is much larger than the code of statutory law.
On the other hand, the judicial branch is the branch of the US government I currently trust most. Judges hear lots of different cases and can legitimately be called experts. Juries, being somewhat randomly can be more in touch than elected officials. The legislature is much too slow to change unjust laws, if it's willing to act at all. Brown vs Board of Education exemplifies merrit of common law. There is no way Congress and the president would have banned segregation in anything that can be considered a swift manner. If the supreme court did not have the authority to broadly proclaim that separate cannot be equal, the segregation would not have ended with that decision. The current legislative environment is dysfunctional, and I am thankful that there is a fullback: that if a law is grossly unfair there is no need to depend on congress to overturn it. Not that our legal system is fast -- but it's faster than congress!
With all that considered, I conclude, with some reservation, allowing judges the ability to interpret the constitution more loosely is a net positive.
The idea of statutory law is simpler and it's theoretical merits are plainer. By having a codified law, it is easier to claim that people accountable to know and therefore follow the law. The legislative body is specifically chosen and tasked with making law, which hopefully ensures they are the most qualified people to do it. Though common law is codified, it is not codified as plainly. You need lawyers to identify that a particular judgment qualifies as president, and the sum off possible cases that could be legal precedent is much larger than the code of statutory law.
On the other hand, the judicial branch is the branch of the US government I currently trust most. Judges hear lots of different cases and can legitimately be called experts. Juries, being somewhat randomly can be more in touch than elected officials. The legislature is much too slow to change unjust laws, if it's willing to act at all. Brown vs Board of Education exemplifies merrit of common law. There is no way Congress and the president would have banned segregation in anything that can be considered a swift manner. If the supreme court did not have the authority to broadly proclaim that separate cannot be equal, the segregation would not have ended with that decision. The current legislative environment is dysfunctional, and I am thankful that there is a fullback: that if a law is grossly unfair there is no need to depend on congress to overturn it. Not that our legal system is fast -- but it's faster than congress!
With all that considered, I conclude, with some reservation, allowing judges the ability to interpret the constitution more loosely is a net positive.
Speaking of Brown v. Education, do you consider that a decision a Constitutionally sound, GW?
Trouble is, the constitution is so hard to change, that you better interpret it in the way that's best for the country, or you're doomed to live with the injustice the wrong constitution would perpetuate.
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