How should the constitution be interpreted?

[SilthDraeth]

The Constitution has articles that address your concerns Eskimo. Or are you implying that arresting a person isn't part of "due process of law".

I was under the impression that it was part of the process. Arrested, charged, trial, or plea, and convicted or acquitted. (may be over simplified)

Anyways, grab yourself a copy of the Constitution and the amendments and read it, then come back and try to argue for one side or the other. I have a pocket version I got on Amazon for about $5. I keep it in my car. I don't read it all the time, but sometimes when I am waiting in car for kids or something I will read through parts of it. And it is mainly there if I get arrested, as I would hope if pulled over and arrested, I would be allowed to hold onto my pocket constitution.

Pocket Constitution that I carry

 

[werepossum]

We can't be 100% strict with our interpretation of the Constitution. Otherwise, anything the founders failed to mention or even imagine is fair game simply because it isn't included. We have to be aware of the spirit of the document as well and have careful debate as to how that spirit applies to areas the Constitution fails to address.

Now, the things that the Constitution does explicitly address should be adhered to as printed unless we find reason to amend it.

Like Blankslate, I agree with this. My preference is to first, interpret strictly. Where the words may not be completely clear, use our best judgment as to original intent. And where the subject is not at all addressed, use the spirit of the document. As an example, take anchor babies. Clearly the federal government never intended babies born on US soil to allow admittance to a wealth of federal benefits - such did not exist at the time. The text was written only to prevent states from denying blacks citizenship. However the wording of the Fourteenth Amendment is clear: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Absent any legal standing that would legally remove them (NOT their parents) from the jurisdiction of the USA, any baby born on US soil receives automatic citizenship. The words are clear, so regardless of how I wish it were written and what I know of the original intent it must be interpreted exactly as it is written. Otherwise we are subject to what we want it to say, and whomever has the most power at the moment may in effect rewrite our Constitution.

 

[fskimospy]

The Constitution has articles that address your concerns Eskimo. Or are you implying that arresting a person isn't part of "due process of law".

I was under the impression that it was part of the process. Arrested, charged, trial, or plea, and convicted or acquitted. (may be over simplified)

Anyways, grab yourself a copy of the Constitution and the amendments and read it, then come back and try to argue for one side or the other. I have a pocket version I got on Amazon for about $5. I keep it in my car. I don't read it all the time, but sometimes when I am waiting in car for kids or something I will read through parts of it. And it is mainly there if I get arrested, as I would hope if pulled over and arrested, I would be allowed to hold onto my pocket constitution.

Pocket Constitution that I carry

I know exactly what the amendments to the Constitution say, there is no need for me to go read them again.

The Constitution most certainly does not address my concerns, nor could it ever. Nowhere does the Constitution even define what due process of law is, and any definition I've ever seen is nebulous and requires interpretation itself. Regardless, 2nd amendment explicitly states that the right to bear arms shall not be infringed. It has no exceptions for criminal behavior whatsoever. Even if you were to ignore the requirement to interpret what due process is and accept that police could relieve someone of property as part of due process, the explicit prohibition of infringing the right to arms would preclude confiscating weapons. (the car ride back to the station with the criminal should be interesting to say the least)

All that aside, the guarantees of the Constitution often conflict with one another. How could you guarantee both without interpreting what was more important at the time? The Constitution cannot be only literally read and used as a governing document. If you are arguing otherwise, you don't understand the Constitution.

 

[Hayabusa Rider]

The Constitution ought to be interpreted as the party in power deems. Well not really, but effectively that seems to be a dominant viewpoint if "your guys" are in power.

Original intent ought to be the standard applied. That does not mean literal wording or else protections from search and seizure would not apply to anything not written on paper. If a sufficient number of people feel that it needs to be amended there are means by which that can be done, but they are high. "Well this is what we think we need so let's just do it" should be have "let's amend things for legitimacy" added to it.

 

[Hayabusa Rider]

What is that way then? Do you agree that we cannot write the Constitution to cover all the situations that might come up? If that's the case, how can we help but interpret it?

The Constitution does not say that a thing cannot be addressed but it must be done within boundaries. Interpret? Define in precise language what that means. Are you saying "they didn't have this situation then so we'll disregard it and say what I think they would have if they were here"?

 

[fskimospy]

The Constitution ought to be interpreted as the party in power deems. Well not really, but effectively that seems to be a dominant viewpoint if "your guys" are in power.

Original intent ought to be the standard applied. That does not mean literal wording or else protections from search and seizure would not apply to anything not written on paper. If a sufficient number of people feel that it needs to be amended there are means by which that can be done, but they are high. "Well this is what we think we need so let's just do it" should be have "let's amend things for legitimacy" added to it.

Original intent is also a highly problematic standard to use. What would the writers of the Constitution think about the passage of email through stateside servers? How would they view the use of satellite and thermal imaging assets for surveillance purposes? How would they view the regulation of global derivatives markets? Not to mention that there's no evidence whatsoever that those who wrote the Constitution expected people to use their interpretations of the late 1700's in how we interact with the world today. I mean do you expect people in 2212 to live their lives by your interpretation today?

 

[nonlnear]

The Constitution ought to be interpreted as the party in power deems. Well not really, but effectively that seems to be a dominant viewpoint if "your guys" are in power.

Original intent ought to be the standard applied. That does not mean literal wording or else protections from search and seizure would not apply to anything not written on paper. If a sufficient number of people feel that it needs to be amended there are means by which that can be done, but they are high. "Well this is what we think we need so let's just do it" should be have "let's amend things for legitimacy" added to it.

Forget the "original" part and focus on what it means for a legislative body to have a well-defined, identifiable intent for an act that was born from a complex compromise of many totally conflicting individual intents. The concept is absurd on its face.

Even the justices who supposedly believe in original intent don't believe in original intent. "Original intent" doesn't mean anything. If it actually means something, it means something far less objective than people who advocate for original intent think it means. Original meaning, on the other hand...

 

[fskimospy]

The Constitution does not say that a thing cannot be addressed but it must be done within boundaries. Interpret? Define in precise language what that means.

Interpret is defined by 'explaining the meaning of'. When confronted with a situation to which the Constitution is applicable, someone must explain the meaning of the Constitution in that matter.

Are you saying "they didn't have this situation then so we'll disregard it and say what I think they would have if they were here"?

No. I'm not interested in what James Madison would have thought about revealing password protected Twitter feeds. I view originalism as hopelessly naive. The Constitution was left deliberately vague, and it was done so for a reason.

 

[monovillage]

Too bad Eskimo didn't make his initial bullshit claims in this post about the 1st Amendment, it would have been more interesting.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

[pauldun170]

If we are to question "due process"...we can also question "privileges or immunities"

Now we are all fucked.

 

[fskimospy]

Too bad Eskimo didn't make his initial bullshit claims in this post about the 1st Amendment, it would have been more interesting.

Feel free to explain why they are bullshit.

 

[Craig234]

I've never taken a course in anything about the constitution, but I'm going to go with what I assume is common sense. There are 1 of 2 options.

1. You can interpret it strictly.
2. You can interpret it according to what you think the intent of the wording was, and with an aim to help it conform to changes brought about by modernity.

On strict interpretation, I can think of some problems. It lends itself to a paralyzing effect on any legislation that doesn't find it's explicit justification somewhere within the constitution. As much as I would like to say that's just fine with me, I'm willing to concede that there are times when the government must be able to act.

On the second interpretation, as I'm sure most of you could guess, I have a much greater objection. To the extent that the judiciary is able to interpret "meaning" and "intent" into a document, it is able to essentially negate two things: 1.) the binding nature of the document, and 2.) the idea that there ever needs to be a constitutional amendment. This is compounded by an excessive reliance on precedent. (With respect to reliance on precedent, I have a vague recollection that the principal difference between common law and civil law is that one relies on precedent, the other on a code. Can't remember.)

Given the two options, assuming there's no middle ground, I choose the strict interpretation.

That's a general description of my position. Gimme yours.

I'm not going to post a lot on this here, but one thing - you need to pay attention to the fact that the constitution HAS PROVISIONS DEMANDING SOME BROAD INTERPRETATION.

So your demand for 'strict' is often a violation of the 'strict' interpretation of the clauses saying to interpret it more broadly.

The founding fathers WANTED it to be a 'living document' that was adjusted to fit the times as things changed, with core principles. They put things in to help that.

For example, they could have been more specific and limiting than 'general welfare' of the people if they had wanted to - they did not want to.

Also note you might not want to agree with every original intent - for example, the 'father of the constitution' as I recall objected strongly to the power of the judicial branch to nullify a law as 'unconstitutional', worrying that it was an unrestrained power making them unelected dictators with a veto - but he had no good answer to how the constitution was supposed to be enforced without that power, presumably right after Congress passed a law that ignored the constitution they'd say "oops, that was a mistake" and repeal it. Ya, right.

Your 'strict constructionism' is often what's actually against what the constitution says.

 

[brandonb]

It should always be spirit of the law vs. the letter of the law.

Talking about speeding:

If I'm going 56 mph in a 55 mph zone, would I be breaking the law? Under the letter of the law, yes. I was exceeding the speed limit by 1 mph, and I should get a ticket.

But lets take a look at the bigger picture. Why was this law written? Because it becomes more dangerous the faster you go for not only yourself but to the others around you. It's to keep people at a reasonable speed given the road/circumstances. Which is why the areas can change posted speed limits on roads over time.

So, if the conditions are good, sunny day, nobody on the road, just you and the cop sitting there with a speed gun under and overpass, is there any more danger to you or the world around you by going that extra mph? Not really. But if you were going 100 mph, then absolutely there can be a situation where it is much more dangerous (like if an animal ran into the road) because of the increased speed.

Laws should always be subject to common sense. However, the area we need to debate is what is common sense?

One person might say the 2nd amendment is not common sense anymore, as we don't need a militia. But if you look at it as a way to fight a tyranical government, then absolutely it makes sense, and if you look at it in that way, tanks and military jets should be on the table as well. What we have now is a compromise, and the line in the sand doesn't make much sense and people say it should move one way or another.

 

[Craig234]

OK, saying more than I'd planned, a classic example here is the notion of the 'penumbra of a right of privacy'.

When you read the constitution it has some specifics like 'arms' (well, sort of specific), but you find while it protects this and that, it might not something else that seems quite reasonable to be similarly protected. What to do? Oh, wait! How about reading what it actually says!

It has two whole amendments with just this sort of vague language about 'the things we didn't lay out aren't left out, they are all included as reserved rights of the people and states'. In other words, 'maybe we said guns and trials and cruel and unusual punishment and unreasonable searches, but we're not limiting rights to what's explicit - if the right isn't grantedto the federal government then you have that right also.'

In other words, if the constitution hadn't listed 'free speech' or 'freedom of assembly' the intent was you should have those rights anyway.

The history shows this was a big debate between those who wanted certain rights listed, and those who said doing so would undermine ones not listed - and they both agreed they didn't want that and agreed on the 9th and 10th amendments that 'strict constructionsts' like to ignore while they BETRAY the constitution by being 'strict' when the constitution isn't strict.

In practice, unfortunately, the court has mostly ignore that intent.

Edit: whoops, back to the penumbra of privacy. When the pill was invented, social conservatives didn't want women having sex not for procreation and getting away with it, they should risk pregnancy! And they passed laws saying so, and the laws were challenged.

The constitution has few sections on birth control. The court for a rare occassion did say 'you know, some of those vague unspecified rights the constitution mentions seem to make sense here, that the founding fathers did not grant the federal government the power to go telling women they couldn't have the pill.'

And the looked at the rights to things like 'freedom from unreasonable search' and decided the spirit was towards a 'right to privacy' that included the right to take the pill - and made that the law.

That's the sort of thing 'strict constructionists' whine about, but really, I think it's they who are ignoring what the constitution says.

The thing is the difference between 'making up rights out of thin air' and 'interpreting the spirit of the constitution'. That's up to good justices - and 'strict constructionists' are wrong to claim the lines are drawn in the constitution - they are not there. It is a very vague document.

But the justice who demans birth control be listed to be recognized is violating the constitution more than the justice who asserts the penumbra of privacy.

Save234

 

[nonlnear]

Craig, you seem to be conflating the presumption of broadness of individual rights with the presumption of broadness of governmental powers. They are separate issues.

I wouldn't be surprised to hear that you favor both kinds of broadness of interpretation. That's a legitimate view to have, but the two presumptions of broadness are hardly linked.

 

[Craig234]

Craig, you seem to be conflating the presumption of broadness of individual rights with the presumption of broadness of governmental powers. They are separate issues.

I wouldn't be surprised to hear that you favor both kinds of broadness of interpretation. That's a legitimate view to have, but the two presumptions of broadness are hardly linked.

Hey, I like broads.

Really, it's a case by case. I'd say 'strict constructionism' is more often used against the constitution to justify a position than used to reign in interpretive excess.

But in any given case, whether the broadness of a right or a power, it's a question of the specific situation and relevant constitutional issue.

While the justices correctly in my view identified the 'penumbra of privacy', the penumbra of something else might be not in the constitution and wrong to assert.

It all depends.

But to your specific conflate question - that's mostly about the broadness of rights.

The broadness of powers does come up, though, from the 'general welfare' clause to the commerce clause and many others.