Where do you stand on the constitution?

[Dr. Zaus]

Hi,

I'm looking to understand where, and why, we stand where we stand on the constitution. * metaphorically, also, come, not cum.. ya jackasses!

I want this to be a more appreciative thread: more about why you come at it the way you do, and less about who is 'right'.


http://en.wikipedia.org/wiki/Strict_constructionism

http://en.wikipedia.org/wiki/Textualism

http://en.wikipedia.org/wiki/Purposive_Approach

http://en.wikipedia.org/wiki/Original_intent

http://en.wikipedia.org/wiki/Originalism

http://en.wikipedia.org/wiki/Living_Constitution

 

[Charles Kozierok]

(Redacted. Apologies, I responded before I realized this was a poll. Carry on.)

 

[Dr. Zaus]

I try not to stand on it, the museum guards get really upset.

I think you're going to need to be a little more specific here...

Poll added, links to wikipedia on each view added, explanation that I am speaking metaphorically added, ya jack ass, and attempt to suggest appreciation ironically added next to point about you being a flightless bird
Retracted, because I realize some people don't like being called a particular species of penguin

 

[Murloc]

I voted the first 2.
If an article is written that way, then you apply it that way.

Is it outdated? Is it unclear? It doesn't reflect what society wants anymore?
Change the constitution through a popular vote (either just through referendums or even through initiatives).

To me, the constitution should be a dynamic text that reflects the current views of the society, not something like a religious text that is untouchable. And it should be chosen by the people too since it's all about principles and sets the direction of the country, let legislators create the laws and do all the complicated stuff, that's their job.

 

[Whiskey16]

Murloc is correct.

In brief, the Constitution of the USA it is a relatively simplified and outdated document that reflected the times of its composition. The few amendments that have been made and added fail to modernise the document and bring it in line with more contemporary and comprehensive constitutions of other states.

 

[cwjerome]

Except for "strict constructionism" which barely means anything and is used by the media and politicians more than legal scholars and judges, I personally think all of them can and should play a role... with "living constitution" definitely playing the smallest role. I suppose this wouldn't make me the most consistent in the world and I would be one of those "swing" Justices, but I think looking at a variety of factors is better than narrow interpretations.

 

[cwjerome]

In brief, the Constitution of the USA it is a relatively simplified and outdated document that reflected the times of its composition. The few amendments that have been made and added fail to modernise the document and bring it in line with more contemporary and comprehensive constitutions of other states.

Every document reflects the times of its composition. But some documents go above and beyond that to create worlds, the US Constitution being one of them.

Although I disagree with you, if you believe the US Constitution is not modern enough then that's a failure of the American people and elected officials. As Hobbes would say, the Constitution is the single face of all.

 

[Dr. Zaus]

My concern is that a literalist interpretation, limited to the meaning of the time, would, for example:
Mean that arms should be limited to the available armaments of the time.
Mean that silly, useless, bits of the constitution could not be ignored (see the 9th amendment)

But, otoh, USSC as the final arbiter of what the constitution means leaves us with the patriot act :-\

 

[Craig234]

The fact is, the constitution is vague generally, and that has good and bad.

On the good side, it does allow for some useful flexibility. On the bad side, it allows for reducing the protections.

This is a time when governments stretch words for political reasons, whether 'imminent threat' for the Iraq war or, well, 'imminent threat' for drone use.

It's not new - John Adams and Woodrow Wilson both had and enforced their own ideas of what 'free speech' was protected, and it didn't include criticizing the president or saying you were against a war. People were imprisoned for exercising a right of free speech for both.

On the other hand, when birth control pills were invented, did the state governments have the right to say, 'you, citizens, can not use that product, because we think it will increase immoral sex not for procreation'? Some state governments did pass laws to do just that, and the Supreme Court found the constitution protected people's 'right to privacy' to make those decisions, by flexibly interpreting the document.

The founders clearly wanted the document to have that flexibility - when they said 'all powers not granted here are reserved to the states and the people', it meant for the courts to find those unnamed rights and protect them - that wasn't 'jusdicial activisim' that was violating the constitution, it was following it.

However, when the judges find corporations are 'people' because corporate lawyers made a major effort to get that perversion into the law, flexibility did violate it.

This happened especially when one strong corporatist with an agenda for an activist court to create these corporate rights got onto the Supreme Court, Lewis Powell.

He'd come to oppose the public's power to stand up to corporations - he was on the board of a major Tobacco company while the government fought them. As a time when the Tobacco companies were paying for large campaigns to claim there was no evidence smoking was dangerous, later exposed as intentional fraud.

Thing is, for better or worse, any vague constitution is going to be interpreted politically; by necessity judges have to make up an interpretation to apply it. That doesn't always mean violating it, that's a different issue. But everyone loves to claim that the way they decide to interpret it isn't political, it's the 'correct' method. And that's generally pretty baseless.

Scalia was pretty direct about this recently in his activist comments about the Voting Rights Act. He just decided it's up to him to say that the Senate didn't mean its votes when it renewed the act 98-0, and he said that the fix for the problem is that the Senate needed help to come to the right decision to reject the law by having a judge who will say it's unconstitutional.

This is the same guy who said that counting the votes in an election could cause irreparable harm to one of the candidates, the one he wanted to win.

But of course he's an 'original intent' guy who has the only correct interpretation.

 

[Agent11]

It's not so much vague as it's just that I think they under estimated future generations willingness to dissemble.

 

[Dr. Zaus]

What I get from what you are saying Craig, is that you don't like it when the interpretation doesn't fall in line with the way you want things to be?

 

[Pray To Jesus]

My stance is codified in the 9th Amendment.

 

[Dr. Zaus]

My stance is codified in the 9th Amendment.

Mine is enshrined in the 7th amendment:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

I want my $21 law suit!

 

[werepossum]

Strict constructionism, with original intent used only if the language has clearly evolved. I don't think you can separate those two because language does evolve, as shown in the phrase "well regulated". But strict constructionism must always be first. A prime example of that is the Fourteenth Amendment. We know from surviving documents that this was to address the tendency of some states to disenfranchise blacks and Native Americans, not to address illegal immigrants sneaking in to have babies. However, the text itself is quite clear; it says what it says and needs no interpretation or clarification. Therefore babies born to illegal immigrants sneaking in to have babies are born US citizens. To read it otherwise is to use original intent to make the Constitution say whatever we want, which is no different than the "living Constitution" bull.

If the Constitution means whatever we want at the time, then the Constitution means nothing whatsoever. Where it needs to be modernized, it should be so amended, not discarded or creatively interpreted.

 

[Dr. Zaus]

If the Constitution means whatever we want at the time, then the Constitution means nothing whatsoever.

But doesn't our system give the USSC the right to do just this? and mean, exactly as you said, that it has no real meaning at all?

 

[Craig234]

It's not so much vague as it's just that I think they under estimated future generations willingness to dissemble.

It's vague.

And every interpretation of what's vague can be called dissembling if you disagree with it.

So if I say, you have the right to free speech, and one judge says 'money is speech' and another says 'no, it isn't', clearly one is 'dissembling', right?

 

[werepossum]

But doesn't our system give the USSC the right to do just this? and mean, exactly as you said, that it has no real meaning at all?

Yes, and at times it is abused. But no human-based system is or will ever be perfect. The alternative is to allow the legislature and/or the President be the last word on interpreting the Constitution, and as activist as SCOTUS can sometimes be they are unarguably less so than is Congress or the President. And sometimes, that activism is necessary. As an example, consider abortion. When technology evolved to allow safe (for the mother) aborting of a baby and American mores evolved to allow that to be a practical alternative, someone had to address its Constitutionality, especially since the underlying principles (killing unborn children versus giving the State control over a woman's body) are very important principles indeed. Congress was (and is) bitterly divided; the President's view changes with the office holder. Thus it fell to SCOTUS to hammer out the Constitutionality of abortion, for it obviously wasn't addressed and there was zero chance of a Constitutional Amendment to cover it. SCOTUS' decision was about as muddled as could be, but still far preferable to Congress changing the rules with every sea change in voters' wishes.

But as you say, the Constitution means only what you can convince five men or women in black gowns that it means, nothing more and nothing less. It's a necessary evil to avoid worse evils.

 

[Mursilis]

And sometimes, that activism is necessary. As an example, consider abortion. When technology evolved to allow safe (for the mother) aborting of a baby and American mores evolved to allow that to be a practical alternative, someone had to address its Constitutionality, especially since the underlying principles (killing unborn children versus giving the State control over a woman's body) are very important principles indeed. Congress was (and is) bitterly divided; the President's view changes with the office holder. Thus it fell to SCOTUS to hammer out the Constitutionality of abortion, for it obviously wasn't addressed and there was zero chance of a Constitutional Amendment to cover it. SCOTUS' decision was about as muddled as could be, but still far preferable to Congress changing the rules with every sea change in voters' wishes.

I would strongly disagree. The Court's creation of "rights" not expressly recognized by the Constitution really opened the door to all sorts of judicial activism of the kind you usually seem to be against. Additionally, this vague, judicially-constructed "right to privacy" which underpinned Roe v. Wade and later abortion cases seems to be arbitrarily applied by the Court. Why does the Constitution protect a woman seeking an abortion and not one wanting to smoke pot?

 

[Craig234]

If anyone disagrees with me that the constitution is vague and that the interpretation of it is a political act, and anyone claming to 'strictly follow it' is not honest about it, I have a test for you to show me how that's done. I just ask you to address the following issues the Supreme Court has had to or could have to decide in interpreting the second amendment's protections. Please show me precisely the basis in the amendment.

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Lawsuit #1: Can automatic weapons be banned for civilians
Lawsuit #2: Can handguns be banned for civilians
Lawsuit #3: Can concealed carry handguns be banned for civilians
Lawsuit #4: Can the size of ammunition clips be limited
Lawsuit #5: Can shoulder missiles be banned for civilians
Lawsuit #6: Can armed drones be banned for civilians
Lawsuit #7: Can brass knuckles, nunchuka, shuriken and other weapons be banned
Lawsuit #8: Can mace and other chemical weapons be restricted or banned
Lawsuit #9: Can military-style assault weapons be banned? Under what definitions?

That's a start - there are many more possibilities.

I'm not asking you to argue for or against any of these on the merits. I am asking you to show me precisely in the second amendment where it answers the questions.

Of course, it doesn't, and the Justices have to come up with their opinion about what the vague right means and apply it to specific situations - as bedrock law of the country.

Pick one approach and I'll show you a thousand problematic cases if it's followed. Pick another approach and I'll show you a thousand other cases that are problematic.

Yet that's what the Justices have to do. With critics no matter what they decide - which isn't to say they 'don't get it wrong' sometimes.

I'm just making the point that the people who claim that only their side actually follows the constitution, which clearly answers the issues the way they like, are wrong.

One more example for making the point: the constitution gives the right of eminent domain:

"nor shall private property be taken for public use, without just compensation."

Now, what is "public use", exactly? If a city decides that taking run-down property for resell to private developers who will generate taxes for the community and benefit it is 'public use' of the property for those benefits, where exactly in the cosntitution does it define what public use is? Isn't public use largely what the public officials say it is? But what are the limits? Who decides? How is that enforcable? What is just compensation and what are the rules for how the government can determine that?

Whatever answer you give I'll tell you it's not in the constitution - but it sets the rules. And someone has to say 'this is ok, but not that'.

So stop running around claiming you're the only one actually following the constitution, pretending it has the clear answers it doesn't - and shouldn't.

Imagine if it HAD tried to answer every detailed permutation.

Unfortunately, Supreme Court Justices are politicians, and some have more radical agendas, like Scalia. They don't necessarily look at it that way, but that's what a politician would say.

Many of them have explicitly come from political backgrounds in fact - the Chief Justice who blocked FDR's New Deal was a former Republican nominee for the presidency. The Chief Justice who wrote perhaps the most famous decision of the last century, Brown v. Board of Education, was a former governor of California - so popular he was nominated for governor by the Democrats AND Republicans.

It's uncomfortable to recognize these things, and so people like the comfort of pretending all the answers are plain in the constitution if people would just follow it. That's political spin.

They aren't as 'badly political' generally as elected officials, though. They don't raise money and run for re-election. They don't have to answer to constituencies unless they want.

They aren't chartered to represent people or to advance policies - only to apply the law fairly.

And when that changes over time - such as when they determine that requiring the police to read suspects their rights is needed for justice - that doesn't make them communists out ignoring the constitution to pursue a corrupt desire of their own. It's just how the system is supposed to work. Applying the principles in the constitution, better and better when possible.

 

[cwjerome]

Of course the Constitution is fairly vague, if it wasn't it wouldn't have lasted more than 50 years. Its brilliance is that it gives parameters and we're supposed to be smart enough to fill in the blanks and adjust fire when necessary.

 

[LumbergTech]

I believe that original intent never stays as a guiding principle in the long run and that it should be a living document that reflects the values of people in current times, and not just the wishes of those in the past.

 

[werepossum]

I would strongly disagree. The Court's creation of "rights" not expressly recognized by the Constitution really opened the door to all sorts of judicial activism of the kind you usually seem to be against. Additionally, this vague, judicially-constructed "right to privacy" which underpinned Roe v. Wade and later abortion cases seems to be arbitrarily applied by the Court. Why does the Constitution protect a woman seeking an abortion and not one wanting to smoke pot?

I share your dislike for the problematic judicially-constructed "right to privacy"; much better by far had SCOTUS based this opinion on private property rights (i.e. if one can own property one must first own oneself.) However, consider the results were this up to Congress. When the Republicans are solidly in power, abortion is severely limited, perhaps only in rape and incest, perhaps only to save the life of the mother. Catholic dogma goes even farther, placing the life of the infant above that of the mother because the infant needs to be baptized to go to Heaven. When the Democrats are solidly in power, abortion not only becomes legal up to if not after the moment of birth, but also becomes an entitlement, so that government has to fund it. As badly thought out as is Roe v. Wade, I still maintain that Congressional authority would be worse.

If anyone disagrees with me that the constitution is vague and that the interpretation of it is a political act, and anyone claming to 'strictly follow it' is not honest about it, I have a test for you to show me how that's done. I just ask you to address the following issues the Supreme Court has had to or could have to decide in interpreting the second amendment's protections. Please show me precisely the basis in the amendment.

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Lawsuit #1: Can automatic weapons be banned for civilians
Lawsuit #2: Can handguns be banned for civilians
Lawsuit #3: Can concealed carry handguns be banned for civilians
Lawsuit #4: Can the size of ammunition clips be limited
Lawsuit #5: Can shoulder missiles be banned for civilians
Lawsuit #6: Can armed drones be banned for civilians
Lawsuit #7: Can brass knuckles, nunchuka, shuriken and other weapons be banned
Lawsuit #8: Can mace and other chemical weapons be restricted or banned
Lawsuit #9: Can military-style assault weapons be banned? Under what definitions?

That's a start - there are many more possibilities.

I'm not asking you to argue for or against any of these on the merits. I am asking you to show me precisely in the second amendment where it answers the questions.

Of course, it doesn't, and the Justices have to come up with their opinion about what the vague right means and apply it to specific situations - as bedrock law of the country.

Pick one approach and I'll show you a thousand problematic cases if it's followed. Pick another approach and I'll show you a thousand other cases that are problematic.

Yet that's what the Justices have to do. With critics no matter what they decide - which isn't to say they 'don't get it wrong' sometimes.

I'm just making the point that the people who claim that only their side actually follows the constitution, which clearly answers the issues the way they like, are wrong.

One more example for making the point: the constitution gives the right of eminent domain:

"nor shall private property be taken for public use, without just compensation."

Now, what is "public use", exactly? If a city decides that taking run-down property for resell to private developers who will generate taxes for the community and benefit it is 'public use' of the property for those benefits, where exactly in the cosntitution does it define what public use is? Isn't public use largely what the public officials say it is? But what are the limits? Who decides? How is that enforcable? What is just compensation and what are the rules for how the government can determine that?

Whatever answer you give I'll tell you it's not in the constitution - but it sets the rules. And someone has to say 'this is ok, but not that'.

So stop running around claiming you're the only one actually following the constitution, pretending it has the clear answers it doesn't - and shouldn't.

Imagine if it HAD tried to answer every detailed permutation.

Unfortunately, Supreme Court Justices are politicians, and some have more radical agendas, like Scalia. They don't necessarily look at it that way, but that's what a politician would say.

Many of them have explicitly come from political backgrounds in fact - the Chief Justice who blocked FDR's New Deal was a former Republican nominee for the presidency. The Chief Justice who wrote perhaps the most famous decision of the last century, Brown v. Board of Education, was a former governor of California - so popular he was nominated for governor by the Democrats AND Republicans.

It's uncomfortable to recognize these things, and so people like the comfort of pretending all the answers are plain in the constitution if people would just follow it. That's political spin.

They aren't as 'badly political' generally as elected officials, though. They don't raise money and run for re-election. They don't have to answer to constituencies unless they want.

They aren't chartered to represent people or to advance policies - only to apply the law fairly.

And when that changes over time - such as when they determine that requiring the police to read suspects their rights is needed for justice - that doesn't make them communists out ignoring the constitution to pursue a corrupt desire of their own. It's just how the system is supposed to work. Applying the principles in the constitution, better and better when possible.

That is certainly a valid point. There was a clear contemporary distinction between arms and ordnance, but it's no longer quite so clear as an M249 is unarguably arms and yet more deadly than a crew-served eighteenth century cannon. Whether one believes that the Constitution's clear language (or failing that, original intent) should be used or that the Constitution means whatever we want it to mean, simply correctly applying that clear language or original intent can and usually is a non-trivial exercise open to argument. However, frequently the right thing to do is the most difficult, so simply pointing out that this is honestly difficult does not make a good argument for simply ignoring it and doing whatever we want.

I will say one thing - changing the meaning of "public use" to "benefits government and therefore presumably benefits the public" in Kelo v. New London is the single worst decision since perhaps Dred Scott v. Sanford. Under that decision, any level of government may deprive the public of access to any shared resource as long as government gains more tax money. I know you support this when government takes one person's private property to give to another person in order to get higher tax revenue, but consider that this same principle could equally be used to take a bird sanctuary or wildlife conservancy and develop it.

 

[werepossum]

I believe that original intent never stays as a guiding principle in the long run and that it should be a living document that reflects the values of people in current times, and not just the wishes of those in the past.

Since legislation by elected officials best reflects the values of people in current times, should we then not just nullify the Constitution and remove SCOTUS' responsibility to rule on legislation? By definition, judicial review imposes the opinions of unaccountable judges over the opinions of those legislators who depend on the people's approval to gain and hold power.

 

[Mursilis]

I share your dislike for the problematic judicially-constructed "right to privacy"; much better by far had SCOTUS based this opinion on private property rights (i.e. if one can own property one must first own oneself.)

That would still be problematic. Private property rights aren't absolute within the Constitution (which allows for public takings, for example), and likely wouldn't be consistently applied by the Court anyway. See my prior complaint about recreational drug use not being protected by the Court under the right of privacy. I'm also dubious of more than general analogies between private property rights and physical integrity rights, as they often end up strained. Additionally, private property rights are already recognized within the law to be restricted in a number of ways (for example, being on your own property won't protect you from being prosecuted for a large number of criminal code violations), so the Court recognizing a private property right in one's own physical body is both too obvious and too vague to be all that useful.

However, consider the results were this up to Congress.

Why would it be up to Congress? It was previously considered a state matter, as it should be.

When the Republicans are solidly in power, abortion is severely limited, perhaps only in rape and incest, perhaps only to save the life of the mother. Catholic dogma goes even farther, placing the life of the infant above that of the mother because the infant needs to be baptized to go to Heaven. When the Democrats are solidly in power, abortion not only becomes legal up to if not after the moment of birth, but also becomes an entitlement, so that government has to fund it. As badly thought out as is Roe v. Wade, I still maintain that Congressional authority would be worse.

I think you're overstating the actions Congress would take on this issue - they'd probably talk about it quite a bit, but actually do considerably less (as is the norm). Regardless, even such frequent legislative flip-flopping would be, IMHO, preferable to the Court going down the slippery slope they began in Roe (or really, Griswold v. Conn.).

 

[Mixolydian]

The constitution is designed to be revised over time. That's what amendments are. I don't really have much of an opinion other than, if the people feel it needs to be changed, and an amendment is ratified, then so be it.