The Art of Constitutional Interpretation

[GhostWriter16]

OK, so many people (Liberals and conservatives alike, but the vast majority of people who DON'T do it are libertarians and libertarian-leaning conservatives) will point to the decisions of the likes of John Marshall to support the current, modern art of "Loose" construction of the constitution. While the loose constructionists did indeed seem to have "Won" thanks to the likes of Hamilton, Marshall, the Northern victory in the Civil War, and other events that happened a long time ago, should we really simply assume this is the correct way to interpret the constitution?

Now, ever since the constitution was written, there has been debate on both sides. Thomas Jefferson being a notable strict constructionist (Although it could be debated that he compromised with the Louisiana Purchase, I guess.... that was a pretty small "Compromise" compared to the loose constructionists though, and it certainly wasn't any more hypocritical than the whole "All men are created equal, yet we all own slaves" thing, in fact, it was far less so) and Alexander Hamilton being a pretty obvious proponent of loose construction. The Supreme Court from the very beginning supported a loose construction ever since they gave themselves the power to declare acts unconstitutional (Although this does make sense, at least if strictly applied and not becomming a case of the courts making laws themselves, as they often do, its still not in the constitution) they have pretty much always consistently given more power to the Federal government, and since that's the "Easier" path, its rarely questioned, but is it really the correct way to interpret the constitution?

The necessary and proper clause might seem to say yes, but I really don't think that could be the intent. Here's the clause and why I think that interpretation is wrong: The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

So it has to be NECESSARY, it can't simply seem like a good idea, or be helpful, there can't be another way of getting through the situation, or it can't be done. If it is truly necessary, the government can do practically anything, but only if, and that's pretty rare. Applying a national draft to avoid foreign invasion would be such a case, while I would argue that a draft is normally not "Right" in such an extreme case there would really be no other choices. The likes of World War II could easily be argued as necessary because the Nazis and Japanese clearly wanted to take over the world, and were succeeding (Plus, we were attacked.) The draft was constitutional in that case.

But it is not OK to use "Necessary and Proper" to defend absolutely any law you think might be a good idea at the time. If its not "Necessary" its not OK.

The tenth amendment, with clear language, seems to back up this type of strict conclusion. And James Madison, the writer, supported a strict view of the constitution in general as well, which would add weight to this view.

This is not a discussion of what you think the government SHOULD do. You might support loose construction because you think its more practical, but that's not what I'm asking. I'm asking how you feel it is appropriate to interpret the constitution.

Discuss, and poll coming....

 

[bhsup]

Literally/strictly. Interstate commerce, for example, should only be literal commerce transactions across state lines or the transportation of cargo across state lines. I'd probably interpret this even stricter than Justice Thomas.

 

[Dachs]

I can't believe you actually put "joke option" text in your Pole.

The worst part is that it's not even the most ridiculous option up there.

 

[downtown]

Yeah, that option clearly makes the most sense.

 

[Ailedhoo]

And then there is the all issue "should there be a constitution?" A question worth considering for these types of threads, especilly in relations to Britian.

 

[Dachs]

And then there is the all issue "should there be a constitution?" A question worth considering for these types of threads, especilly in relations to Britian.

Don't the British pretend that they have a constitution, but that it's not just one document?

I don't see how that is an improvement at all.

 

[Ailedhoo]

Don't the British pretend that they have a constitution, but that it's not just one document?

I don't see how that is an improvement at all.

We have... many, many laws. If will take years to understand all our policies...

But we do have evolution of our laws I guess...

 

[Dachs]

We have... many, many laws. If will take years to understand all our policies...

But we do have evolution of our laws I guess...

So do we. What's your point?

 

[tonberry]

A document that was written by slaves-owner should be loosely interpreted.

 

[GhostWriter16]

Yeah, that option clearly makes the most sense.

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."

And then there is the all issue "should there be a constitution?" A question worth considering for these types of threads, especilly in relations to Britian.

This is a valid point, but beyond the scope of the thread. There are all sorts of arguments regarding the constitution. TBH I think its almost impossible to really make the constitution a liberal document when it comes to what modern liberals want it to say. You really can't make it a conservative document either, it really more closely fits libertarian or local soverengty principles far more than it does big government conservatism OR big government liberalism. Or, at least, this is self-evident to me.

Now, liberals have all sorts of constitutional arguements for why my way is right, but my question is how many liberals really believe those arguments, or rather, that those arguments reflect what the writer of the constitution (Or at least, after weighing the amendments that came afterwards, which in some cases do directly and clearly violate the intentions of the Founders.)

That said, that's deliberately not the question. Its a constitution-centered thread. Almost everyone rejects slavery as wrong, but before the 13th amendment, they didn't really do so because of what the Founding Fathers' intended when they wrote the constitution, and now we do so because the clearly intended process of amendment decided so, not because the Founding Fathers intended it.

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.

While you did make a valid point, its not the point of this thread. This thread is not about whether we should follow the constitution or not, but what following it actually means.

A document that was written by slaves-owner should be loosely interpreted.

Again, I think this is a tough position to take. You could argue that the constitution should still be interpreted strictly, and as the Founding Fathers are a product of their time, the amendment process will handle these things. You can argue that the constitution should not be regarded as authoritative at all for this reason (Although I disagree with that premise.) But I don't really think you can argue for "Loose interpretation" based on the supposed moral character of the writers, since the constitution pretty plainly states that Federal Powers should be strictly interpreted in the tenth amendment.

 

[Birdjaguar]

Any document over 200 years old should be loosely interpreted.

 

[JollyRoger]

If we want to interpret documents strictly, should we start with the premise that the Constitution should not be operable since it is not in strict accordance with how to amend or replace the Articles of Confederation?

 

[GhostWriter16]

Any document over 200 years old should be loosely interpreted.

Could I ask why?

If we want to interpret documents strictly, should we start with the premise that the Constitution should not be operable since it is not in strict accordance with how to amend or replace the Articles of Confederation?

We could, but that's a little besides the point. I would argue that constitutional government has nothing to do witth articles of confederation government, explicitly speaking.

It would be like if a new constitutional convention were called today, it were accepted by 90% of the country, and that new constitution was accepted without any real challenge for the next 200 years. In 2200, someone could criticize the process based on the old constitution, but it wouldn't matter anyways since the new constitution doesn't even claim to follow the old one, nor does the government that follows the new one. On the other hand, it WOULD be valid to argue that the 2200 government doesn't reflect the thoughts of the people who wrote its constitution in 2012 because it DOES claim to follow that constitution.

Our government doesn't claim to follow the articles, at all, so it doesn't really matter what they say. But even if it did, that would be a separate discussion.

This thread is about how the constitution itself should be interpreted. Now, it might be more practical to "Interpret it loosely" than to get rid of it, due to harsh resistance to the latter and a general complacancy to the former, but as long as we claim to follow the constitution, I can argue we've been doing it wrong for the past 200 years, and I think I have a pretty good case.

 

[tonberry]

Again, I think this is a tough position to take. You could argue that the constitution should still be interpreted strictly, and as the Founding Fathers are a product of their time, the amendment process will handle these things. You can argue that the constitution should not be regarded as authoritative at all for this reason (Although I disagree with that premise.) But I don't really think you can argue for "Loose interpretation" based on the supposed moral character of the writers, since the constitution pretty plainly states that Federal Powers should be strictly interpreted in the tenth amendment.

Just to be clear, I do not think that "the constitution should not be regarded as authoritative at all for this reason", as you wrote. It is a good constitution that has help lead to USA to prosperity. But you said it yourself, the Founding Fathers are a product of their time. Well, so is the constitution. I can't think of a better argument to interpret it loosely.

 

[JollyRoger]

I can argue we've been doing it wrong for the past 200 years, and I think I have a pretty good case.

Wait, you can argue we have been doing it wrong for 200 years, yet I can't make the argument that we did wrong from the start?

 

[GhostWriter16]

Wait, you can argue we have been doing it wrong for 200 years, yet I can't make the argument that we did wrong from the start?

Sure you can, but I'm not addressing that. I'm addressing how the constitution SHOULD be interpreted, from the assumption that the constitution actually IS authoritative. Whether it IS authoritative should be argued in a different thread. This thread is about what the constitution is actually supposed to mean, not whether you agree or disagree with it.

 

[History_Buff]

Any document over 200 years old should be loosely interpreted.

Yep.

Could I ask why?

Because it's been 200 years. The world has changed. Hell, our Constitution was written in 1982, and while it's certainly better than yours, I'd say it's still got some room for improvement (most notably in prohibiting discrimination based on sexual orientation, a belief widely held throughout the nation).

It would be like if a new constitutional convention were called today, it were accepted by 90% of the country, and that new constitution was accepted without any real challenge for the next 200 years. In 2200, someone could criticize the process based on the old constitution, but it wouldn't matter anyways since the new constitution doesn't even claim to follow the old one, nor does the government that follows the new one. On the other hand, it WOULD be valid to argue that the 2200 government doesn't reflect the thoughts of the people who wrote its constitution in 2012 because it DOES claim to follow that constitution.

So it's ok to ignore one 200 year old document, but not another, simply because we chose not to ignore the second one? If everyone had chosen to ignore the Constitution and instead govern by the Articles, would that still apply? Why not write a new one and ignore both 200 year old documents.

I'm addressing how the constitution SHOULD be interpreted...

To sum up, as a loose utilitarian, if you interpret the constitution whichever way you want, and it leads to obviously terrible outcomes, you are interpreting it wrong. That just moves the debate to a non-legalistic discussion of how society should be, but that's a far more helpful discussion to have anyway.

 

[JollyRoger]

Sure you can, but I'm not addressing that. I'm addressing how the constitution SHOULD be interpreted, from the assumption that the constitution actually IS authoritative. Whether it IS authoritative should be argued in a different thread. This thread is about what the constitution is actually supposed to mean, not whether you agree or disagree with it.

Given that it's birth was not by strict construction of the subsequent governing document and that statutes and court cases from the framing era demonstrated an original understanding that the text was not to be construed overly strictly, then I would argue that the original intent was a somewhat loose reading of the text.

Even internally, there are inconsistencies with a strict reading of the text. The 1st Amendment states that Congress shall make no laws restricting freedom of speech, yet there are the treason and copyright clauses in the Constitution authorizing Congress to do just that.

Many so-called textualists refuse to strictly read the 2nd Amendment and allow those with a felony on their record to have their right to bear and keep arms go uninfringed.

The Constitution is not a statute and was not originally intended to be read a strictly as one.

 

[GhostWriter16]

So it's ok to ignore one 200 year old document, but not another, simply because we chose not to ignore the second one? If everyone had chosen to ignore the Constitution and instead govern by the Articles, would that still apply? Why not write a new one and ignore both 200 year old documents.

We could, but that's not what I'm addressing (Have I not made that clear by now)?

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.

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.

 

[JollyRoger]

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.