The Art of Constitutional Interpretation

How do you believe the constitution should be interpreted?


  • Total voters
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We have one already. Its called the tenth amendment.
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?
 
Are articles and amendments to be equally valued?

If there is a perceived conflict between an article and an amendment, does an article trump an amendment?
 
Really, I only see two ways of HONESTLY looking at the constitution.

1. That intent doesn't make a difference at all, its simply what the constitution says. This obviously makes the ninth amendment, or its relation to the tenth, extremely hard to interpret, but otherwise, I can see the merit of this, since the country is bigger than the one guy (James Madison) who wrote its legal text. This, when taken with what the tenth amendment actually says, leads to a strict interpretation automatically.
2. The intent behind the words matters as much as the words themselves, but since James Madison himself was a strict constitutionalist himself, it really doesn't matter what his contemporaries thought about the constitution, (John Marshall and the like) because the writer has a clear strict constitutionalist (Democratic-Republican) outlook.

As such, I can see no GOOD reasons to interpret the constitution any way other than strictly. Liberals might argue that its impossible to do so in today's world. Fine, then argue against the constitution (As you did) rather than simply arguing to reinterpret the constitution (Note: "Amendment" and "Reinterpretation" are two very different things, and the former actually does fit with a strict reading) to "Fit modern times." It's the same reason non-Christians annoy me significantly less than liberal ones (As a general statement), while non-Christians argue against Biblical authority (Other than certain historical matters) liberal Christians accept it and then frequently argue against the (At least to me) plain meaning.

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).
 
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.
Exactly! You can't decide how to interpret the constitution by interpreting the constitution.

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.
That's true, but that's not the subject of this topic :dunno:
 
A good constitution should be followed strictly, a bad constitution has to be interpreted more loosely.

The problem is not the way a constitution is interpreted, the problem is that it has to be interpreted in the first place.
 
Every law has to be interpreted.
 
Are articles and amendments to be equally valued?

If there is a perceived conflict between an article and an amendment, does an article trump an amendment?
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).
 
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.
 
Just so we're clear, the "Joke Option" is that we interpret the constitution a certain way simply BECAUSE Downtown does so. Its not saying that Downtown knowing what he's talking about when it comes to such things is a joke. In fact, you seem to be pretty well-regarded by all sides when it comes to these sorts of things, as is evidenced by your inclusion on practically every poll. The joke is that "We'll interpret it however Downtown interprets it, rather than actually picking a poll option."

That's not how joke options work.
 
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.

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.

Wouldn't it be nice if it did though?

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.
 
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.
Why would you assume that textualists and non-texualists disagree on an unrelated aspect of interpretation?
 
US Constitution said:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

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.

US Constitution said:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
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.)
 
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.

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:p)

Generally that would be termed Sedition rather than treason though. The first amendment most certainly should invalidate legislation like the Alien and Sedition Acts.

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.
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.)

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....
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.

When did Jefferson and Madison actually use those laws? Admittedly that's not something I've ever heard before.

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.)

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.
 
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.
 
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.
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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