Interpreting the U.S. Constitution (and related topics)

[Túrin Turambar]

[Note: I split this off from the same-sex marriage thread - VtF]

Although he did not discuss same-sex marriage, Scalia said he is an "originalist" and does not believe the Constitution should be interpreted based on current societal opinions.

"You do not need the Constitution to reflect the views of current society," he said during a wide-ranging interview with Hastings professor Calvin Massey. "I interpret it the way it was understood by society at the time."

I must confess a degree of sympathy with that position.

[Primula Baggins]

As someone who wouldn't be allowed to vote if that interpretation prevailed, I am not a fan. And there are other ways society understood the Constitution that I think we're just as well without, such as that slavery was not an infringement of any real person's rights.

I don't see why the social attitudes of two centuries ago should be wrapped around our necks today.

[Túrin Turambar]

As someone who wouldn't be allowed to vote if that interpretation prevailed, I am not a fan. And there are other ways society understood the Constitution that I think we're just as well without, such as that slavery was not an infringement of any real person's rights.

I don't see why the social attitudes of two centuries ago should be wrapped around our necks today.

True, but the Constitution can be amended. And as I see it, the effect of allowing the Supreme Court to be the arbiter of ‘societal values’ is to give seven unelected jurists virtually unlimited quasi-legislative power.

As I’ve said on this board before, though, I think that any approach is imperfect because the Bill of Rights itself is flawed. Any bill of rights, for that matter. As I see it, they don’t so much protect people’s rights as simply hand legislative power to the judiciary. I doubt that America would be any better off today if the Supreme Court was always full of strict constructionalists, which is why I said I have only a degree of sympathy. But I also wince at the way that certain people look at the Constitution as nothing so much as a vehicle to pursue a political agenda, by making decisions about what outcomes they would like and then trying to find a hook in the document to hang their case on. And I think that in certain cases throughout the court’s history it has aided and abetted them.

At any rate, I do favour an approach of interpreting constitutional rights narrowly. Complex issues like gun control and abortion should be debated on their merits rather than coming down to legalistic hermeneutics. That has been, with a few exceptions, the approach of British courts (before the modern Euro Charter of Rights) and is still favoured by the High Court of Australia.

[yovargas]

As someone who wouldn't be allowed to vote if that interpretation prevailed, I am not a fan. And there are other ways society understood the Constitution that I think we're just as well without, such as that slavery was not an infringement of any real person's rights.

I don't see why the social attitudes of two centuries ago should be wrapped around our necks today.

As I often point out when this argument is inevitably made against the more literal-minded Constitutional interpretations - that's why they included an amendment process.

[River]

As someone who wouldn't be allowed to vote if that interpretation prevailed, I am not a fan.

Well, our suffrage is guaranteed by another amendment so we'd still have those rights, at least. However, if the notion that equal protection under the law does not, in fact, extend to women becomes popular I think I will have no choice but to emigrate. I likes me rights. If I can't have 'em here I'll go elsewhere. I'm sure any daughters I should have would appreciate it.

On the other hand:

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

And then 52 years later...

Amendment 19 - Women's Suffrage. Ratified 8/18/1920. History

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Now, of course, without a time machine it's hard to say for sure, but it looks to me like, pre-19th amendment, women were still considered citizens, they just didn't have voting rights, or many others. Otherwise the wording of 19 makes no sense.

[Primula Baggins]

That's a good point, River. It's just that I'm puzzled that some believe we should interpret the constitution through a 200-year-old social/cultural filter and that that is somehow superior to applying a modern one. We don't make any other important decisions based on what was true 200 years ago if it is not still true now.

[Voronwë the Faithful]

Thank God for the arrogant brilliance of John Marshall, quite possibly the most important figure in American history.

[Primula Baggins]

From Wikipedia:

The longest serving Chief Justice in Supreme Court history, Marshall dominated the Court for over three decades (a term outliving his own Federalist Party) and played a significant role in the development of the American legal system. Most notably, he established that the federal courts are entitled to exercise judicial review, the power to strike down laws that violate the Constitution. Thus, Marshall cemented the position of the American judiciary as an independent and influential branch of government. Furthermore, the Marshall Court made several important decisions relating to federalism, shaping the balance of power between the federal government and the states during the early years of the republic. In particular, he repeatedly confirmed the supremacy of federal law over state law and supported an expansive reading of the enumerated powers.

...

His influential rulings reshaped American government, making the Supreme Court the final arbiter of the Constitution—a document with respect to which the Court has the power to overrule the Congress, the president, the states, and all lower courts. He redefined the legal rights of corporations in terms of the individual rights of the stockholders, giving corporations the same level of protection for their property as individuals had. Marshall thereby provided corporations a shield against intrusive state governments.[13] Marshall, along with Daniel Webster (who argued some of the cases), was the leading Federalist of the day, pursuing Federalist approaches to build a stronger federal government over the opposition of the Jeffersonian Republicans, who wanted stronger state governments.[14] Marshall's most important rulings include Cohens v. Virginia, Fletcher v. Peck, Gibbons v. Ogden, Marbury v. Madison, McCulloch v. Maryland, Trustees of Dartmouth College v. Woodward, and Worcester v. Georgia.

[Túrin Turambar]

That's a good point, River. It's just that I'm puzzled that some believe we should interpret the constitution through a 200-year-old social/cultural filter and that that is somehow superior to applying a modern one. We don't make any other important decisions based on what was true 200 years ago if it is not still true now.

Proponents of constructualism argue that you don't read the constitution through any sort of 'filter', you simply follow what the words say, and take the meaning that the Founders most likely intended.

[Primula Baggins]

I'm wondering why we should believe that the Founders thought they were writing a changeless document for a changeless world. They did include a means of amending the Constitution, and used it themselves to correct a number of oversights. And they were sons of the Enlightenment. Would they have been eager, or thought it even possible, to base every detail of their own new country's laws and governance on a document written in the 1500s, by men who could not even imagine the world and times the Founders lived in?

[axordil]

you simply follow what the words say

And if English were COBOL, this would lead to a predictable and universally accepted result.

[Inanna]

That's a good point, River. It's just that I'm puzzled that some believe we should interpret the constitution through a 200-year-old social/cultural filter and that that is somehow superior to applying a modern one. We don't make any other important decisions based on what was true 200 years ago if it is not still true now.

Proponents of constructualism argue that you don't read the constitution through any sort of 'filter', you simply follow what the words say, and take the meaning that the Founders most likely intended.

"most likely intended" cannot be interpreted without applying filters. In fact, it is this notion of "it has been written" and thus, "we have to follow what has been written" is the problem with religions.... I don't think we would like a constitution to be put in that category.

[River]

Especially since the US Constitution was written by men, not all of whom were religious.

[yovargas]

I'm wondering why we should believe that the Founders thought they were writing a changeless document for a changeless world. They did include a means of amending the Constitution, and used it themselves to correct a number of oversights.

Again they included the amendment process because the document should be changed as time goes. With that process. Not by other means.

[Voronwë the Faithful]

Forgive me for being so contrary, yov, but that simply is not true. The constitution was DELIBERATELY written to be broad and flexible to accommodate social or technological change over time. Edmund Randolph (a delegate from Virginia, later the seventh Governor of Virginia, the second Secretary of State, and the first United States Attorney General) wrote the following statement in the preamble of the Committee of Detail at the Constitutional Convention:

In the draught of a fundamental constitution, two things deserve attention:
1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and
2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states."[

The founding fathers knew from the beginning that they would need to use general propositions that could be "accommodated to times and events. Justice John Marshall, certainly one of the founders himself, not surprisingly put it very well in the seminal 1819 case McCulloch v. Maryland, in which he described the Constitution as "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." And Marshall's political enemy, Thomas Jefferson, also cited the need to interpret the Constitution in light of changing circumstances. Jefferson wrote in an 1810 letter, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

The founding fathers definitely called for respecting the text and meaning of constitutional language, but they also understood the need for allowing contemporary needs or values to inform its application to modern events.

Edit to add: While I am typing this I've been listening to the Giants game, and a suprise special guest started talking that you would be particularly interested in, yov: Sean Astin!

[nerdanel]

I'm wondering why we should believe that the Founders thought they were writing a changeless document for a changeless world. They did include a means of amending the Constitution, and used it themselves to correct a number of oversights.

Again they included the amendment process because the document should be changed as time goes. With that process. Not by other means.

Hmm, did you check to see whether the original drafters of Florida's constitution had intended to include gay people's right to adopt in their understanding of equal protection before cheering for the Florida appellate decision that struck down the anti-adoption law as a violation of equal protection? It seems unlikely that the original drafters envisioned such protections being afforded to would-be gay parents. Perhaps you should consider speaking to your fellow Floridians to advise them:

(1) the appellate judges in question overstepped their bounds;
(2) the anti-adoption law should remain in place until the necessary 60% supermajority of Floridians votes for a constitutional amendment providing that there is a right to adopt that may not be abridged on the basis of sexual orientation.

If you don't agree with #1 and 2 above, why not?

Anyway, I just stopped by this thread to post quickly that CJ Walker is stepping down from the bench and returning to private practice at the end of this year. If a higher court remands the case to the district court, the district court will randomly reassign the case to one of Walker's colleagues.

[yovargas]

I have perfectly good responses to both the posts above me but I decided I don't much have the energy to formulate them so I'll just say I love having lawyers around.

[Primula Baggins]

Me, too.

[Túrin Turambar]

Well, to put in another way, if it is necessary to interpret the Constitution to find rights to abortion and gay marriage and the like in order to keep it up with 21st-century values, then why don't people living in the 21st century vote for them?

[N.E. Brigand]

Forgive me for being so contrary, yov, but that simply is not true. The constitution was deliberately written to be broad and flexible to accommodate social or technological change over time. Edmund Randolph ... John Marshall ... Thomas Jefferson ...

Is it originalist to cite the opinions of the founders in opposition to originalism?