The Art of Constitutional Interpretation

[Farm Boy]

Anything written by politicians, argued on by lawyers, and decided upon by judges isn't going to be strictly or loosely interpreted in actuality. It's going to be cynically interpreted. I see no poll option for this, so I throw in with Downtown.

 

[Cutlass]

A constitution in my opinion should be interpreted strictly, to the letter and as literally as possible for any given instance. There is no point to writing a constitution if your just going to ignore it when the circumstances suit whatever body has power at any given instance.

Then, if it becomes evident to the majority that something in the constitution needs to change, have a referendum and insert whatever it is into the constitution, or otherwise alter the necessary clause. This methodology ensures that any changes to a constitution are not imposed by a minority, thus minimising the risks of ideological imposition, and loss of freedoms that come with both a laissez faire liberal and loose interpretation of the constitution and a methodology that gives amendment power solely to the sitting government.

The problem with that is that some people simply assume it means one thing, and no further explanation was needed, and some people still insist it means something else. I don't know the history of the creation of other nation's constitutions. The US Constitution was very much believed to something close to its current legal interpretation by people who served on the Constitutional Convention and who were involved in the ratification of it by the states. The "strict interpretation" came after the "loose interpretation", lead by a person who was not there and one who was. And has never been accepted by the courts, the Supreme Court, or the majority of political leaders as the legitimate interpretation.

So now we have a revival of this movement that is a rejection of what has been the law of the land for near on 240 years.

The reality is that, with fits and starts, the US has been moving closer to the spirit of the Constitution as time goes by, and not further from it, as some claim.


The Constitution is not a set of shackles to our past that prevent us from growing, the Constitution is an ideal that we should be striving to grow towards.

 

[Leoreth]

A constitution in my opinion should be interpreted strictly, to the letter and as literally as possible for any given instance. There is no point to writing a constitution if your just going to ignore it when the circumstances suit whatever body has power at any given instance.

This is why I said that the poll is bad and "strictly" and "loosely" are useless and loaded categories. Again, "literally" and "strictly" are emphatically not the same thing! And I think it's disingenuous to claim that everyone who doesn't interpret the constitution literally is trying to ignore it.

Every approach to the constitution is interpretation. Even the literal approach. So depending on your method of interpretation you can arrive at different conclusions about what the constitution says without one being less strict than the other. This is important to realize.

To a purposivist many literal interpretations of the constitution appear to be just as twisting of its actual intent as vice versa.

 

[GhostWriter16]

It obviously makes sense to interpret a Constitution strictly. The thing is that using contemporary standards to inform such an interpretation can be just as 'strict' as looking at the founding intention. The poll seems to automatically assimilate strict/founding intention and loose/living document, when it would be quite easy to have a loose interpretation of founding intention and a strict interpretation taking account of contemporary standards. I think I like the approach that has been taken over the last 25 years or so, to broaden the scope of protections offered and perhaps move away from being so literal. It doesn't compromise the integrity of the Constitution to recognise that although the authors of the Constitution didn't necessarily want women to vote, such a right could no longer be taken away.

The Founders didn't want women to vote, and we made an amendment to let them.

The amending process, on the other hand, was legally allowed to begin with.

And I'm glad we made the change, obviously.

 

[Camikaze]

But if ss 7 & 24 indicate that the government must be 'chosen by the people', surely a literal interpretation of that includes women (or, because that's more ambiguous in this case, given South Australian women could vote and were protected by s 41, how about we go for something clearer and say 'non-whites' (ignoring that a little, but less, ambiguity arises in that case too)). Yet that is not what was intended. The founders actually had a pretty explicit intention that non-whites shouldn't vote. In fact, that was one of the main driving forces behind federation. Why is there a need for undertaking a historically difficult amendment process to include an express provision that non-whites are indeed people? And what if it didn't pass? Would it then be alright to disenfranchise non-whites, on the basis that ss 7 & 24 provide no protection for them, because that's what the founders intended? Or should we go with a literal interpretation, informed by contemporary standards? And if we then went for such a literal interpretation, how would it not be 'strict'?

 

[utgotye]

I have always thought that the Constitution says what it says, no more, no less. If you want it to say something more or less or something different, that's what the amendment process is for. One can say it's quite difficult to change, and it is and should be. The system is designed with inherent inefficiency to temper it against the whims of the people. Be thankful every day for the republic.

 

[Leoreth]

I have always thought that the Constitution says what it says, no more, no less.

And how do we find out what the constitution says?

 

[Global Skeptic]

And how do we find out what the constitution says?

You listen to me and if you claim otherwise you are wrong.

 

[MagisterCultuum]

But if ss 7 & 24 indicate that the government must be 'chosen by the people', surely a literal interpretation of that includes women (or, because that's more ambiguous in this case, given South Australian women could vote and were protected by s 41, how about we go for something clearer and say 'non-whites' (ignoring that a little, but less, ambiguity arises in that case too)). Yet that is not what was intended. The founders actually had a pretty explicit intention that non-whites shouldn't vote. In fact, that was one of the main driving forces behind federation. Why is there a need for undertaking a historically difficult amendment process to include an express provision that non-whites are indeed people? And what if it didn't pass? Would it then be alright to disenfranchise non-whites, on the basis that ss 7 & 24 provide no protection for them, because that's what the founders intended? Or should we go with a literal interpretation, informed by contemporary standards? And if we then went for such a literal interpretation, how would it not be 'strict'?

The founders specifically avoided determining who should and should not be able to vote at the federal level. That was considered a state issue. They seem to have all assumed that slaves should not be able to vote, but were not so explicit in denying free blacks the right to vote.

No state ever permitted slaves to vote, but the State Constitutions of Delaware, Pennsylvania, and Maryland explicitly guaranteed the right of free blacks to vote back in 1776. New York followed in 1777, New Hampshire in 1784, and Massachusetts in 1780. The only state I can find that explicitly made it illegal for free blacks to vote was South Carolina.

Blacks were involved in the process of ratifying the Constitution in many states. Early on there were actually more black voters than white voters in towns like Baltimore, Maryland.


Technically there were a few women who could vote in many of the states early on too. Back when the franchise was limited to landowners, states often did not specify gender or even age requirements. Instead they tended to limit the vote to heads of households rather than give it to individuals. Women were not normally considered to be heads of households, but they could be if they were widows and did not remarry.

 

[Leoreth]

You listen to me and if you claim otherwise you are wrong.

Thought as much

 

[Cutlass]

I have always thought that the Constitution says what it says, no more, no less. If you want it to say something more or less or something different, that's what the amendment process is for. One can say it's quite difficult to change, and it is and should be. The system is designed with inherent inefficiency to temper it against the whims of the people. Be thankful every day for the republic.

And what does that mean? Remember, the people who wrote it disagreed about what it said.

 

[Traitorfish]

The system is designed with inherent inefficiency to temper it against the whims of the people.

Have you ever noticed when it's something that a person agrees with, it's the "will" of the people, and when it's something they disagree with, it's just their "whim"?

 

[Farm Boy]

One may be optimistic that a whim that sticks around long enough to force itself through the bureaucratic maze is indeed the will.

 

[Traitorfish]

Well thank God you kept up Jim Crow for as long as you did, or you might never had known for certain that black people actually objected to it and weren't just being stroppy.

 

[Farm Boy]

It aint perfect. And I did qualify that it required optimism.

 

[Traitorfish]

Faith in the system after waiting until 1964 to let black people use public bathrooms doesn't seems to demand optimism so much as a serious blow to the head.

 

[Farm Boy]

You could, if you so choose, see optimism in the fact that things do actually do change for the better. Eventually the rights of the minority in this situation did indeed win out over the "will of the majority." Or perhaps became the will of the majority. Which always seems a rather difficult path to not slip off. Why stick to being pessimistic about the timing of the Civil Rights Movement though? Surely a democracy that allowed slavery to exist for so long would be better cannon fodder for pessimism. Or the date of women's suffrage? Or lack of equality in marital rights? If the list of evils overcome gets too long to still be a grumpy monkey, focus on ones we still institutionalize today! But that might sound like a clarion call to action, which isn't pessimistic at all. Shoot. Maybe I should leave that up to you and everybody else without traumatic brain injury. I'm not very good at this I'm afraid.

 

[GhostWriter16]

But if ss 7 & 24 indicate that the government must be 'chosen by the people', surely a literal interpretation of that includes women (or, because that's more ambiguous in this case, given South Australian women could vote and were protected by s 41, how about we go for something clearer and say 'non-whites' (ignoring that a little, but less, ambiguity arises in that case too)). Yet that is not what was intended. The founders actually had a pretty explicit intention that non-whites shouldn't vote. In fact, that was one of the main driving forces behind federation. Why is there a need for undertaking a historically difficult amendment process to include an express provision that non-whites are indeed people? And what if it didn't pass? Would it then be alright to disenfranchise non-whites, on the basis that ss 7 & 24 provide no protection for them, because that's what the founders intended? Or should we go with a literal interpretation, informed by contemporary standards? And if we then went for such a literal interpretation, how would it not be 'strict'?

The founders specifically avoided determining who should and should not be able to vote at the federal level. That was considered a state issue. They seem to have all assumed that slaves should not be able to vote, but were not so explicit in denying free blacks the right to vote.

No state ever permitted slaves to vote, but the State Constitutions of Delaware, Pennsylvania, and Maryland explicitly guaranteed the right of free blacks to vote back in 1776. New York followed in 1777, New Hampshire in 1784, and Massachusetts in 1780. The only state I can find that explicitly made it illegal for free blacks to vote was South Carolina.

Blacks were involved in the process of ratifying the Constitution in many states. Early on there were actually more black voters than white voters in towns like Baltimore, Maryland.


Technically there were a few women who could vote in many of the states early on too. Back when the franchise was limited to landowners, states often did not specify gender or even age requirements. Instead they tended to limit the vote to heads of households rather than give it to individuals. Women were not normally considered to be heads of households, but they could be if they were widows and did not remarry.

I think Magister pretty much solves the problem.

I'm not sure "By the people" necessarily would mean women though. I mean, that's obvious to me, but if I currently read a constitution that said "Government chosen by the people" I wouldn't assume that included the children too. Back then, they would have assumed that women would also not be included. In that case, yes, I think its absolutely insane that they wouldn't include women, but not because of the "By the people" phrase. But because there's no good reason to restrict women's suffrage. There IS good reason 10 year olds shouldn't get to vote. Yet wouldn't they TECHNICALLY fall under "Chosen by the People." I agree with a literal interpretation, but to say "By the people" means "By ALL the people" is actually reading into the text anyways.

Now, I agree that excluding minorities and women in this way is absurd, but I see no reason 10 year olds or felons COULDN'T be excluded. As such I would say women COULD be excluded under that as well. The 19th amendment was, deliberately and thankfully, clearer.

Now, would I mind if a Supreme Court ruled that the literal interpretation needed to be followed to let women vote? Well, I guess not if they could explain specifically why "Women" count but "Ten year olds" don't. The 19th amendment avoided these problems and made sure the right would never be challenged again.

 

[Traitorfish]

"Dodging" and "solving" aren't really the same thing.

 

[JollyRoger]

How should this clause be interpreted?

No State shall enter into any Treaty, Alliance, or Confederation