Constitutional Interpretation
 

I thought it would be valuable to have a thread that allows us to discuss philosophies behind the interpretation of the Constitution. This should exist quite nicely along with dksuddeth's threads on the individual amendments. It is also quite timely (maybe even late) with the accusations of "judicial activism" that are becoming so common. I propose that we undertake to discuss what exactly judicial activism would be and how it relates to the legitimate business of the courts. In particular I'd like to see a cogent defense of said activism (if we can even figure out what it is) and the idea that the Consitution is a document that is open to change.

To start (and others please help me by contributing differing ideas), I offer this blog from the NY Times. It is about Justice Scalia's constitutional philosophy. Scalia is a name which seems to polarize discussion immediately, but it's worth remembering that we don't have any dummies on our Supreme Court. I think the reasoning behind his statement that the Constitution does not change with society is sound. He also accounts for the drift and contradictions in court decisions over the centuries. Many of the comments on the blog I linked to are from people who disagree with Scalia (and Fish), and many of them quickly fall into the same trap - one I'd like to avoid here. I don't think that the definite meaning or constructionist view that Scalia propounds is synonomous with literalism. For instance, I highly doubt that Scalia would argue that "freedom of the press" is restricted to actual presses or even the written medium. So, if possible, let's not take that blind alley.

Without further ado:

great article uber, and a great topic.

As far as Justice Scalia goes, I both respect some of his views but disagree with some of them as well when it concerns the constitution.

The constitution is NOT a living document, although it's been treated as one for half of its lifetime. Some people say that its interpretation needs to flow and adjust to the society of the day while others interpret it as the most basic of legal principle that neither needs to be changed, nor should it ever be changed.

If we take a look at the 'living document' theory, we get the hodgepodge mix of interpretations that we have today and the results that show for it are numerous instances where the government violates the constitution and breaks its own laws to enforce its own laws. The constitution then takes on different meanings everytime there is a new house/senate majority, new president, or new supreme court makeup. That much change will only result in disaster for the people of this country.

The 'legal document' standpoint stipulates that these are the laws of this land and are inviolate. The government is not allowed to subvert or sneak around 'loopholes' to obtain an objective, because the objective should always be to do the will of the people.

The last 70 years have seen huge leaps in the changing definitions of the constitutional laws because the power has been reversed. The government now controls the people and it uses the very 'living document' theory thats preached about.

Uber, fantastic thread and a great article to post in example. As a centerist, I admire Scalia for a lot of things, one of them being his "anti-activist" approach, to coin a phrase. The man is consistent with his approach to the Constitution and the law, which is one of the reasons that I find it humorous that the far right in South Dakota considers his vote a lock on their attempt to subvert Roe v. Wade. With well establish precident in front of him, they are expecting him to basically become the activist that he's never been in his entire career. Good luck with that.

I have to disagree with the "living document" interpretation, though. The farther we get from 1789, the farther that the Constitution has to stretch to cover the issues of the day. Obviously it's not a real "living" document, although Scalia's remarks seem directed at that idea. Rather, the framework constructed by it is flexible enough to allow for the necessities of the day. It is by no means a perfect document, but unless we are ready to scrap it and revise it to include issues like fully automatic weapons, abortion, undelcared wars and foreign and domestic terrorism, we have to make what we have work.

The "hodgepodge mix of interpretations" that my esteemd collegue dksuddeth mentioned is the natural order of progression that the framers intended. The very nature of the American people has changed in the last 217 years. We're no longer a nation of "gentlemen farmers", and I know that the vast majority of my ancestors weren't here when the Constitution was ratified. The vast majority of Americans agree that their daily rights have remained sacrosanct their entire lives, and I don't see any examples to the contrary.

There is no need to scrap anything, even because of issues like 'automatic arms, abortion, undeclared wars, and terrorism. The founders were not ignorant when they crafted the bill of rights or the constitution. They experienced firsthand what abuses could be wrought when the power was in the governments hands and not the peoples. It shouldn't matter what new technology or innovation comes in to being, the constitution and BoR is set up in a way that those powers are reserved for the people and the government has their powers supplied by the people. The only limitation is that a legislature or executive branch cannot violate the constitution. Something it does all the time now with 'living document' claims.

I disagree that 'mix of interpretations' is the natural order of progression. The constitution and BoR is a declaration of rights that are pre-existing and powers supplied to a governing body. Mixing interpretations (forgive my gun law decisions here, just making a point), For example, in the western states, no individual has standing to raise a Second Amendment claim, since in 1996 the Ninth Circuit Court of Appeals ruled that the Second Amendment only addresses a state's right, yet the fifth circuit has ruled implicitly that the 2nd is an individual right and it's been affirmed by the fifth circuit court of appeals, we have a 'mix of interpretations'. this is just one example of hundreds out there.

I always thought that the writers of the constitution realized that the document would have to be "a living document", that is why they gave us a method to amend it when necessary. I think they wanted it to be rather difficult to amend and did not intend it to be interpreted widely different depending on the current trends. I think Scalia's position is probably close to this.

Unfortunately, it does matter what new technologies and innovations come along. The internet alone has created a whole new class of journalists (one could argue) that would include bloggers and even members of this board (given a broad enough interpretation). There's also the whole debate over whether or not political contributions are free speach (granted this one is settled although there are lots of issues arising from it). I don't think that the framers could have ever imagined these two issues, and both of them are hot buttons today. The "living" constitution is the one that has to deal with them, and there's nothing explicitely contained in the First Amendment about either issue.


The issue that you raise here is unsettle law. There are competing decisions, and it's up to Scalia etal to make the final call. That's their role in the process - the ultimate arbiters. The only way that various viewpoints are going to get in front of SCOTUS is for the underlying courts to make decisions which then need review. As far as I'm concerned, you've given an example of my arguement in action, only during the construction phase of it.

I agree with you, and that's one of the things that I admire about Scalia - his consistency across the issue to decend into activism. I may not alway agree with it, but I certainly admire it. I also agree that the "difficult to amend" sentiment, but interpretation is completely different. They intended it to be interpreted it the way they wrote it - unfortunately, we can't apply late 18th Century printing technology to the internet, so we're stuck having to rely on the courts deciding if bloggers deserve the same 1st Amendment rights as traditional journalists.

not to threadjack, but in a constitutional aspect can you explain why this is?

There are two different things in play here. The expansion of the freedom of the press is easy to see - I'm sure the founding fathers would have reasonably construed handbills printed by press or printed by hand to be substantially similar in that they represent speech deserving protection. From that standpoint, bloggers, radio, tv, etc are all good to go in my mind.

Freedom of speech is the one that has grown substantially. At this point, virtually an act that is expressive in any way is construed as speech - hence flag burning, artistic performances that have no words, and campaign contributions are protected speech. As a guy in the arts world, I'm glad to see abstract presentations protected as "speech". As a guy on the street, calling things like campaign contributions "speech" tends to give me that creepy crawly feeling. But that's my opinion, and I'm not convinced that my opinion is substantial enough to restrict the definition of speech.

dksuddeth: I suspect he may be speaking from the use of the word "press". I'm certainly not cutting that off, but if that's where The_Jazz was going, that alley leads to the literalism debate that I don't think is representative of Scalia's (or most other originalist's) views. Of course, I could be wrong.

I bookmarked this article the day it came out. I've been saving it for when I had the desire to post something original or when SCOTUS came up again.

I don't have time to add myself right now beyond that I agree with Scalia 100% on this, but feel this sort of incite can help any discussion that follows.

Ustwo, that's a good article that gives an illuminating look at Scalia's views. Where'd you get it?

http://www.boston.com/news/local/mas...a_critical_of/

Meant to post link but didn't take time to proof read at work.

Ubertuber
The Constitution is open to formal change as evidenced by it's amendments. I believe that "judicial activism" is meant as a negative term that refers to an informal judicial reinterpretation of the meaning of the constitution or the framers' intent. Unlike formal amendments to the constitution, these reinterpretations address the meaning of the constitution.

It appears to me that the accusation rests on whether an individual agrees with the interpretation or not. The reinterpretation of the right to privacy has been the primary source of charges of judicial activism. Before the privacy cases, it was perfectly constitutional for a state to forbid married couples from using contraception; for a state to forbid blacks and whites to marry; to abolish abortion. Because of judicial changes in the interpretation of the Constitution, the nation's outlook on these issues changed. That does not mean that everyone agreed with those changes.

I am firmly against the legislation of morality in any form, so I have no argument with any of these changes per se. I do have a problem with the apparent federal interference in state affairs. I hope that there is someone here that is versed on the argument or "reinterpretation" SCOTUS made to supercede state law.

I should probably revisit this part. I'm not trying to say that the constitution cannot be changed at all, that is what the amendment process is for, but that doesn't make it a living document. The 'living document' theory, to me, means that the document will be interpreted to mean different things depending upon societal times and I think that is wrong.


My sentiments exactly. 'judicial activism' would be making law out of the constitution that doesn't exist or rewriting law out of the constitution. Things like 'the people' meaning an individual in several amendments, only to then define it as 'the state' in another. Another example of J/A would be the incorporation amendment interpretation of applying to only SOME of the bill of rights instead of ALL.

the morality argument is why I have issue with Clarence Thomas. I'm still trying to find the source of his statement about it being the governments responsibility to teach and enforce morality. What 'reinterpretation' decision are you talking about?

Dk, I am assuming that there was a reinterpretation of the constitution when SCOTUS superceded state law on rights issues. That premise may be faulty and why I hope someone here is able to address my question.

Ubertuber - if this is a threadjack, please accept my apologies (and please don't "moderate" me out of existence), but...

The 1st Amendment warrants the protection of a free press but does not define what a free press is. The issue now is whether or not a blogger, who is unpaid and self publishes, is actually a journalist. On the one hand, you can have far left and far right bloggers out there deliberately publishing misinformation at the direction of co-conspiritors, and then you can have concerned citizens publishing misdeeds and quasi-legal actions by local politicians (see Knoxville, TN and Venice, FL for excellent examples). If I had links to the two bloggers that I'm referrencing archived, I'd post them, but frankly I don't have time to go back and find them. If you want me to, pm me, and I'll see if I can dig anything up. Remember, the BoR sets up the press as a special class deserving of special priviledges - for instance, as a nonjournalist, you can be forced to reveal your sources for information.

well, to my knowledge (as limited as it is), the champion of state law being superceded by the constitution is Justice Hugo Black. He stipulated this as an interpretation of the fourteenth amendment. there are many decisions that are adjudicated for this, as listed below.

Freedom of Speech
Gitlow v. New York (1925)

Freedom of the Press
Near v. Minnesota (1931)

Assistance of Counsel (Capital Criminal Cases)
Powell v. Alabama (1932)

Freedom of Assembly
DeJonge v. Oregon (1937)

Free Exercise of Religion
Cantwell v. Connecticut (1940)
Establishment of Religion
Everson v. Board of Education (1947)

Public Trial
In re Oliver (1948)

Right Against Unreasonable Search and Seizure
Wolf v. Colorado (1949): The Court held that although the Fourth Amendment applied to the states, the exclusionary rule (unconstitionally obtained evidence cannot be used at trial), which the Court had been held to be an essential corollary to the Fourth Amendment, did not. The Court later incorporated the exclusionary rule in Mapp v. Ohio (1961).

Freedom of Association
NAACP v. Alabama ex rel. Patterson (1958)

Exclusionary Rule
Mapp v. Ohio (1961)

Cruel and Unusual Punishment
Robinson v. California (1962)

Assistance of Counsel (All Felony Cases)
Gideon v. Wainwright (1963)

Right Against Self-Incrimination
Malloy v. Hogan (1964)

Right to Confront Adverse Witnesses
Pointer v. Texas (1965)

Miranda Warning
Miranda v. Arizona (1966): The Court held that the Miranda Warning was an essential corollary to the Fifth Amendment right against self-incrimination and the Sixth Amendment right to assistance of counsel.

Right to Speedy Trial
Klopfer v. North Carolina (1967)

Right to Compulsory Process to Obtain Witness Testimony
Washington v. Texas (1967)

Trial by Jury
Duncan v. Louisiana (1968): The Court held that in state criminal proceedings, where a person could be sentenced to a significant time in prison, he or she had a right to a trial by jury.

Right Against Double Jeopardy
Benton v. Maryland (1969)

Right to Notice of Accusation
Rabe v. Washington (1972)

Right to Counsel (Imprisonable Misdemeanor Cases)
Argersinger v. Hamlin (1972)

Right to Unanimous Jury Verdict
Burch v. Louisiana (1979): The Court has never incorporated the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries, but in Burch, the Justices did hold that when as few as six jurors are empanelled, their verdict must be unanimous.

Unless you're looking at something different, my guess is that any constitutionally protected 'right' supercedes any state law that would infringe upon it.

Ok, I see where you're going with that and can mostly agree. Didn't the slander and libel laws settle this issue though? maybe not.

This isn't really a "moderator moment", but I think your post is excellent - it fits here, but it will live an even better life in the 1st amendment thread. Can you put the appropriate info there too so we can shoot a tangent off?

Dksuddeth - I think there was a spate of "federal rights" rulings post Civil War. I've seen references to this a couple of times recently. I'll follow up and get back to the thread later. This is probably quite relevant to the issue of changing interpretations.

I think the process of amending the Constitution is a completely separate question from the idea of a "living" document. Of course an outlet was provided for formal change, this doesn't imply that interpretation of legal principal changes because the times do. In fact, it sort of implies the opposite - since a process of formal change exists, it is sort of cheating to change the meaning without using it. There's a reason the amendment process is so difficult.

Anybody have thoughts on formal change vs. organic change? (revolutionary change of interpretation vs. evolutionary change?)

Activism isn't necessarily a bad thing in all it's form. I don't think that there are many folks that would argue that the results of Brown v. BOE weren't worth the limb that the court went out on to make it. That's how activist courts tend to look at decisions - they ask what the real world ramifications are. Constructionist courts basically say damn the ramifications, this is what the document says. There are good points and bad points of each stance, and I don't think that you can classify either as positive or negative. They aren't quantifiable in that way.

Unfortunately, the Constitution as written legislated morality - slaves were 3/5ths human, women and non-landowners (the poor) couldn't vote, the people couldn't be trusted to directly elect Senators or the Presidents. Remember Prohibition? That was all about morality.

As far as SCOTUS and state law, the way I understand it, SCOTUS can only decide on cases where the challenge is under some portion of the US Constitution. State constitutions are decided by state courts. Does that answer your question?

Since I seem to be the sole rider on the "activism isn't a bad thing" bandwagon, I'll take this on. Evolutionary/organic change is a necessity. The Constitution (USC) can't be and shouldn't be amended to take on every eventuality. It is rightfully a difficult process and not to be taken lightly. Because of that, the USC has to be interpreted by someone and it doesn't necessarily fit. Going back to my blogger example, I don't think that the founding fathers necessarily anticipated this particular phenomenon. We're talking about unpaid journalists who answer to no one and can publish with complete anonymity. Remember that the 1st Amendment sets up journalists as a special class deserving of special consideration and protection. Do bloggers have the right to protect their sources in that light? Can a city or city official demand that a blogger's host (let's assume it's local for arguement's sake) stop providing services? Can bloggers be arrested for being a public nuissance? How does a judge answer these questions? An activist is going to be more concerned with the ramifications of his decisions than a constructionist. The USC has to evolve (through interpretation) in order to keep up with these kinds of changes.

Confession: I almost wrote "through interpretive dance" above. For some reason I almost shot water through my nose at the thought of Ginsberg and Thomas doing freaky, new age dances of the 1st Amendment.

BTW - I'll see what I can find on the 2 bloggers I mentioned when I get home tonight and post links on the 1st Amendment thread. Hopefully the baby and the wife will cooperate long enough to let me sneak down to my office.

I believe you are right. I think many of the complaints about their activism is of course in how they interpret the constitution. It is almost like they already know how they want to rule and stretch the meaning to justify their ruling. Didn't they recently use some interstate commerce legislation to stop some localities from legalizing marijuana?

I think that you're right. Personally I find it hard to believe that the framers didn't realize what a big hammer they were giving the government with the interstate commerce clause. Granted, there wasn't nearly as much of it then as there is today, but you can use it for everything from road work to drug (legal) sales to livestock without stretching it at all.

The more I read about Scalia the more I tend to agree with him. His question: is probably not far off the mark except sometimes I wonder if they even go halfway.

Dksuddeth
I wasn't very clear that my interest is in the "privacy" rights that I mentioned. Some time back one of this forum's members insisted that there is no constitutional "right" to privacy. I was curious about that statement then, and now I'm not able to find the comment in a search. Let me use the most volatile of the "judicial activism" charges as an example. There is of course no constitutional "right" to abortion, and the states exercised their legislative right to address that issue as they saw fit. My question in this and the other "privacy" issues I listed, is what specific element of the constitution could be interpreted by SCOTUS as justification to supercede state law?

I think the superceding of state law is found in Article 1 Section 10, and to a lesser extent parts of sections 7 & 8.

it seems to me that the claim that a "legal document says what it says"--particularly when lnked to a kind of strict constructionist ideology more generally--is naieve---but it is certainly less problematic that the "original intent" doctrine also dear to the feddies and other such.
language is not static.
the social-historical is not static.
legal systems are not static.
the continued functionality of legal systems is a result of its ability to adapt to change.

it seems absurd to pretend otherwise--unjustifiable conceptually, wrong empirically.

it seems to me that the strict constructionist crowd wants to turn the american common law system into a variant of civil law, under which law is assumed to be perfectable linguistically, and so the functions of judges are in theory reduced to that of functionaries. this would entail a wholesale change in the present american legal system. the only clear result i can see following from this is a radical increase in the likelihood of constitutional crises.
inside most civil law systems, this idea that law is perfectable works out to be an illusion--just as in the states, judges are continually interpreting statutes to apply them to unforeseen situations. it just works at the level of custom. at least in the american system, there are levels of challenges to such interpretations that can bring them to the attention of the supreme court fairly directly.

and btw--judges are not legislating morality--they make decisions on interpretations of existing law of arguments made in court that would fit or shift various issues under the purview of particular existing law(s). the appeal system seems to operate reasonably well, in that these decision can be reviewed repeatedly--the function of these reviews is to whether these interpretations are or are not within limits---which are themselves set by convention--that is by changing assumptions/circumstances.


the tactical function of the strict interpretation school is obvious--the empty charge of "activism" is simply code for interpretations of the constitution that the right does not like. this meme is very much about the history of the contemporary right, one that reaches back to the hooverite opposition to the new deal. the relay between formations is the hoover institute. if you look at how the various papers that hoover generates on legal questions, this recoding of hooverite opposition to roosevelt is near obsessive. look for yourself. i did quite often over the four years i was in palo alto. it is an instructive process.

in order to find a legal rationale for stripping away law the right does not like, they are willing to transform radically the american legal system. the logic of their position would basically alter the status of precedent, it seems to me. i dont see on what possible basis this can be seen as increasing any kind of functionality. but it will serve to enable the right to eliminate things unilaterally. in the name of reducing activism, of course.

i dont see anything important or interesting in the arguments for anything like strict construction. i see thinly veiled political posturing. i think the american common law system is among the few things that this system got more or less right. that of course doesnt mean that the application of elements within that system are hunky dory (the system itself is shot through with extra-legal features that, in the end, are determinant of usage)--but the logic of the system itself seems functional.

Ok, I remember that thread. Basically, someone said that roe v wade was judicial activism because there was no inherent right to privacy. I had to counter that because the 4th amendment is the right to privacy, with exceptions via warrants. The 'justification' was the 'inherent right to privacy' was broadened to include doctor/patient medical advice which assumed that abortions became a medical practice covered under the right to privacy. That isn't exact wording nor is it copied off the decision. I can look that up and put it on here later.

the only problem with the 'not static' claims is that as times have changed, so has the language. Our constitution and laws were/are based on common english law and as such, words have different meanings now than they were back then. Take the second amendment as an example.
Regulate is defined as -
1. To control or direct according to rule, principle, or law.
2. To adjust to a particular specification or requirement: regulate temperature.
3. To adjust (a mechanism) for accurate and proper functioning.
4. To put or maintain in order:

and we've gone over the definition of militia many times as it was defined back then.

If we were to maintain the 'not static' rendition of our legal documents, they would have to be rewritten every time that a definition changed slightly and then have to go through the ratification process, every time. That is certainly not feasible.

Maintaining a 'static' state, or consistency in definitions, is the only way to keep a legal system flowing smoothly.

Roachboy, I agree that informal interpretation of the constitution creates a legal precedent that guides further views of a specific law. I also agree that the current cultural "wars" are making use of the "judicial activism" term in the attempt to reverse long standing legal precedent. I believe any justice of SCOTUS will find himself a minority if he attempts to reverse law based upon precedent.

I have been trying to understand in historical terms vs. the current cultural climate in how SCOTUS has come to interpret the Constitution in ways that are not clearly spelled out by the written document.

For example, I do not understand how the precedent of interstate commerce was legally applied to a farmer that was raising crops for family consumption. You cannot get more "intrastate" than that. But for good or ill, it has become a long standing precedent and will not be reversed.

MoJo, thank you for your post. I have read it several times looking for an answer to my question of privacy rights. What I find there are proscriptions forbidding the states from entering agreements with outside agencies or forming their own monitary system. The relationship of the state with the individual isn't addressed here that I can determine.

Folks, I am just not getting "it" and fear that I am going to be viewed as stubborn if I continue asking the same question. Thanks to all that have attempted to clear up my confusion, but I believe I am a distraction to the discussion at this point.

dk: i am confused. you seemed to argue my point....
but somehow arrive at the assumption first that some kind of stasis was possible for meanings and that second even if it is not possible (you cant abstract legal language from normal usage, like it or not--not entirely) that a fiction created specifically around/for the constitution that would make it static linguistically is somehow desirable.
i dont understand.

yeah, I didn't explain that very well at all. sorry.

basically what i was trying to say is that to interpret the constitution, you MUST use the definitions and terms that they used. You can't try to apply todays definitions to their terms or we end up with something that doesn't work as originally intended.

I don't know why you keep referencing the "founders" or "framers" intent.
First of all, our constitution was made through a lengthy process of collaberation and compromise. There was no fundamental agreement among everyone on what was ultimately penned. It simply doesn't make any sense to quote the thoughts or musings of one or three drafters and call it good or representative of what the ratifying body believed in.

Secondly, your statement that the bill of rights didn't include women and blacks misses the point. The language and thought behind the language excludes women and blacks. Any man or person mentioned should be understood literally, as it was when it was written. Person's, for the purposes of the constitution, were property owning males. Women weren't included, couldn't own property, couldn't vote (until 1920 with the 19th amendment). Blacks weren't persons either, instead defined, codified within the constitution itself, as 3/5ths a person. None of your commentary excusing the fact that the "founding fathers" didn't conceive of women and blacks as having any of the "natural rights" you claim they codified holds up to historical scrutiny.

I keep referencing the founders and framers because MOST of them, not just one or three, debated and understood the natural right of a person to own and carry their own arms for defending the state as well as themselves and their family.

dksuddeth,

when you make replies like the one you gave me, it makes me pause and wonder whether we should continue discussing larger, abstract ideals before making sure we've got the facts/premises correct.

I know your view on how the constitution was drafted, and the values underpinning it, are popular in the mythology of our nation (and the use of "myth" doesn't necessarily imply non-factual), but let's start from point one:

how many framers do you think were involved in drafting the 2nd amendment?
how many people did it take to ratify it?

what kind of connections can you objectively make between the people who wrote a particular phrase (the "framers") and those who passed it into law (the "ratifiers")?
that is, assuming you are correct that "MOST" framers believed what you attributed to them, does that necessarily imply that the ratifiers believed it, as well.

For the record, the Bill of Rights had to pass through the same requirements as any other amendment(s) to the Constitution. Generally speaking, the States ratified the BoR at the same time as they did the Constitution. The "ratifiers" were the same folks who ratified the Constitution and did NOT include "the people" but rather their elected officials in the various state legistatures.

If the framers/founders/ratifiers/anyone else submitted that the individual man did NOT have an individual and god given right to keep and bear arms, i've not ever seen the quote or statement in any of the historical documents. Not the virginia bill of rights debates, the federalist papers, or the constitution convention. In fact, in the entire time I have studied/read/debated about the original intent of the founders concerning the constitution and the bill of rights, nowhere have I ever even heard of someone declaring that there is no individual god given right to bear arms and that it only applies to state sponsored/organized/maintained militias. If there is, it's a secret thats been very well kept.

If, as you infer, that throughout the years of debate that the second amendment was referred to as an individual right but the 'ratifiers' considered it otherwise, I've seen no proof of that either and without any proof of that specific belief, it would be beyond extremely difficult to accept that the representatives of the people played that kind of a joke upon them.

I see your response as an elaborate way of not answering my questions.
You've moved from acceptance of the premises to your argument, immediately, without positioning ourselves at a meeting point.

For example, I am going to describe to you a different framework of understanding of how the Constitution, and the Bill of Rights, came to be decided upon but only after we can make sure we have the same vision of how the process itself works.

How many people do you think "framed" the Bill of Rights, or just specifically the 2nd amendment?
How many people ratified it?

What connections do you know of that explicitly link the thoughts and motivations of the "framers" to the "ratifiers"?


See, none of what I'm about to lay out is going to make much sense, or make any difference to your perspective, if you think that 2, 3, 7, or even 20 people "framed" the Bill of Rights around a table. Or that, when you read excerpts from a larger discussion, such as the "federalist papers," that you would have the entire spectrum of viewpoints or the intent of the people writing out their arguments.

In your response, and it doesn't seem like you're going to give me much more of your same argument, albeit in a slightly different worded version that you've been using this entire discussion, you melded the "founders" into the "framers" into the "ratifiers", as if they were a homogenous group of people with similar interests.

Regardless of the historical accuracy of how you view these old men sitting around talking and writing, I would still argue that you have no basis to judge their "intent." For example, while one may write of a God-given right to bear arms, where in history would one come up with such an idea? They certainly had no right in other nation-states. Yet, the heartthrob of such a sentiment would have come from Continental Europe. And I suggest that philosophers like Locke would have been the seedling of such a notion. Or, more accurately, that man had a God-given right to certain modes of interaction, and the people arguing for individual ownership of weapons would see their mode of relation as a means of securing individual liberties. But certainly not that each and every person on the planet was bestowed by a deity with a right and obligation to be armed with a weapon, despite what they wrote.

And this notion of political expediency, of saying things to constituents that make sense to them, is not a modern invention. So your idea that the ratifiers were playing a joke on their constituency or else your proposition must be held true, that they believed in the arguments layed out on Congress' floor, is flawed at its inception as an either-or logical fallacy. Other options exist, namely that the ratifiers were reacting to a particular political and social climate.

So you tell me what version of men sitting around debating you envision, and I'll state mine, and we can consult a history book, and then move from there. Only after we agree on an accurate version of the process of drafting and ratifying can we move to discussions/debates of who thought what at a precise moment (and discuss the difficulties of doing so). But perhaps this is a good opportunity to interject and remind you what was mentioned earlier, about women and slaves, and why using their notions of how the world worked as a basis for ours can be flawed and perhaps disasterous. First and foremost is the contradiction between the belief that all humans have an inalieable right to exist in a particular mode, yet the limitation of such rights to certain classes of people in society. That very question is a huge hurdle you have to address if you are to continue hinging your basis of support for our rights as a process stemming from a natural birthright, from somewhere external to society. For, as much as I respect the people who founded this nation, nothing could be further from the truth that the notions of rights and what rights humans obtain, are not socially constructed. I would suspect above all else that they would suspect such a thing and so that must be addressed as well when constructing a theory of how our rights were initially codified.

unless you missed the_jazz's post completely, he answered that question.
lets hear it.

why would that be relevant?

see above, jazz answered it. MOST of those that framed also ratified. The exceptions come to the states where there would be some more added.


[QUOTE=smooth]See, none of what I'm about to lay out is going to make much sense, or make any difference to your perspective, if you think that 2, 3, 7, or even 20 people "framed" the Bill of Rights around a table. Or that, when you read excerpts from a larger discussion, such as the "federalist papers," that you would have the entire spectrum of viewpoints or the intent of the people writing out their arguments.

In your response, and it doesn't seem like you're going to give me much more of your same argument, albeit in a slightly different worded version that you've been using this entire discussion, you melded the "founders" into the "framers" into the "ratifiers", as if they were a homogenous group of people with similar interests.[QUOTE=smooth]again, there are many references to these 'framers' discussing an individual right, but I've NEVER come across one that denies it.

Their 'intent' comes from the recordings of the debates. It's very plain in the writings. The whole idea of creating 'the US' is to make a country where 'god given' rights were protected and defended. It certainly applied to all individuals, as they saw it.

so, you're saying that they talked a good game, but like all politicians showed with one hand and gave with the other?

I envision a large group of people discussing the advantages and disadvantages of having a large central government and these same individuals trying to limit the powers of this central government while still maintaining the rights and freedoms of 'the people'. As far as women and slaves not having these 'rights', yes, thats true that at the beginning this was not conceived of. Time told a different story though and we amended the constitution accordingly. Your statement of nothing could be further from the truth that the notions of rights and what rights humans obtain, are not socially constructed. I would suspect above all else that they would suspect such a thing and so that must be addressed as well when constructing a theory of how our rights were initially codified. please explain this better. What i'm seeing is that you're saying 'rights' were constructed only as society changed, instead of them believing that rights were a divine gift.

The reason why my questions are relevant is that the quotes you have of people arguing a certain perspective, that private ownership is a God-given right, is not representative of the debate that occurred.

People often cite a few prominent people they learned in civics class and tack on an "etc." when entering these discussions as proof or evidence that the "founding fathers" or "framers" of our nation thought a paritcular way.

You haven't answered my question because, frankly, you can't.
The_Jazz didn't answer my question, and in fact, appeared to me to be pontification.
At no point did I suggest that common persons had any say in the legistlative process, a strawman he "rebutted." It's obvious that ratification of the Bill of Rights would follow the same process as other amendments, but that's not what I asked.

I asked what your view of the process was.

Not to mention, he's wrong, which is why I initiated this trajectory in the discussion. The Bill of Rights was ratified 4 years after the Constitution was completed, and 2 years after it was already in action. That's hardly the same time and a problem for those of you conflating the "framers" and the "ratifiers"

What of the "founders?" Are you referring to the people who drafted the Constitution or the people who wrote our nation's first document 10 years before (after a year and a half of debate)? So now you've got a good 15 years between the "founding" of this nation and the hallowed Bill of Rights presenting a serious problem for those of you conflating the founders with the framers with the ratifiers.

and you haven't even bothered to address the people who didn't sign any of these documents. Or even the representatives who refused to ratify them.

a problem in these kinds of debates occurs when people refer back to a homogenous group of hallowed men, fuzzy as the details surrounding their relations to one another are, and speculate as to what "they" might or might not have intended when they set out to write political documents.

without bothering to scrape the factoids or the social and political climate surrounding these various men people will continue to make broad inductive leaps of logic that fail undre scrutiny. I already brought up the poin that God didn't give anyone the right to bear arms,; in so far as God is mentioned in our nation's early documents it's not in reference to specific rights, but rather to the natural right to pursue life, liberty, and happiness. Where exactly in your numerous studies of this subject have you seen people arguing for a God-given right to bear arms? The Declaration of Independence, btw, has no legal bearing on anything legal or social in this nation--it's merely a polemic against the English colonialists. The debates on the inclusion of the right to bear arms centered around the importance of securing the existence of a budding nation-state, weighed against the dangers of a standing national army. Where are you deriving the notion that the people who ratified the Constitution had the standpoint that the document they were signing derived its legitimacy from God rather than themselves? In fact, you might wonder to yourself why one would need to codify "natural rights?" Surely God-given, readily apparent rights wouldn't need to be written out, debated upon, and voted into existence?

Your explanation about slaves and women not being conceived of as imbued with these same rights was appreciated, but unfortunately fell flat on the basis that they weren't, as you put it, not conceived of but rather explicitly written out from possessing such rights. If one were to be consistent in one's argument about "original intent" one would need to adhere to the original intent that slaves and women not possess the same rights as propertied men. Or one would have to acknowledge that the passage of more amendments loosens this concept of original intent and allows for changing sentiment and social values of a particular nation-state.

Let's say, oh what, 39 people signed the Constitution...how many quotes do you have that our rights are bestowed from God?

I would prefer not to double post, but I worry that my next response would become lost in the shuffle if I attach it to the above...

The statement you asked me to elaborate, and subsequently paraphrased, means that the notion of individual rights was understood and articulated within a specific social context. It's absolutely correct to claim that prior to a specific period in time and a particular branch of philosophy that the notion of individual rights in Western Europe was simply unimaginable. I don't want to go into how that relates to the discussion at hand, other than to state that any statesman was aware that his writings, debating points, and positions on a particular topic were subject to, and interpenetrated by, the social context within which he operated.

In short, I wouldn't put too much stock in the "beliefs" of politicians caught between an illiterate, rowdy bunch of farmers roaming the countryside, in need of the rule of law rather than rule of the king, and a state-sponsered religion and its adherents they just broke themselves away from as derived from what they said and wrote to the people paying attention to them.

Smooth, please reread what was posted. I answered a direct question with a direct answer. How many people ratified it? The members of the legislatures who ratified the Constitution at the same time. If you want actual numbers, I suppose that I could try to find the actual head count from all 13 state legislatures, but to call my answer a "strawman" is a little insulting, especially when it didn't come down on either side of the issue. My answer clarified a particular point of history that you didn't seem to know. How in the world is that pontification?

the intent question is a problem.
you cannot determine it. not really: generally claims about intent are nothing more than projection.
the sources of the problem are obvious enough: 1) that the constitution is written and so made up of sentences that exceed the intent of the writers--they are not unrelated to intent, but intent dissolves into that which exceeds it. a banal example--an email or this post--you can read it and speculate about my intent in writing it, but you have no way of knowing whether your speculations link to anything. you can generate an interpretation of what is written that would be informed by a project of delimiting intent, but the result is still an interpretation that would be evaluated as any other interpretation would be--as such it s a move within the interpretive game, not a meta-move that puts a stop to that game on the basis of claims presumed definitive.

second: in the particular case of the constitution, the material that you would have to have recourse to in order to make any claim about intent at all is sporadic/incomplete--and this deliberately. you would think that there would be more complete and detailed accounts of the processes of fabrication had the intent been to route interpretations of the document through the intent of the framers themselves. it would seem to me that any move rooted in the (untenable, absurd) notion of "original intent" woudl effectively raise the proceedings of the consitutional convention to the status of meta-law. that is not and was not the way in which the american system of law has functioned since 1787. it is a wholesale reworking of the tradition, passed off as an attempt to rescue it.

and since all claims concerning intent are projections at one level or another, claims about intent are nothing more than moves in the game of political power as it currently exists. as such, teh criteria for evaluating such claims are not the content of the arguments but the politics of the folk who make them. because the claims are nothing more than a device elaborated as a function of a conflict over power.

another way: legal language is an aspect of normal language and changes along with it. like it or not. you can't simply wish this away. reverting to claims concerning the "precision and vagueness" of the constitution is simply a recapitulation of the same arguments about intent at another level.

So, in regards to constitutional interpretation when you try to determine 'original intent', why can't one look at the recorded notes of the virginia convention and the federalist papers? would that not satisfy 'original intent' if there intent is plainly stated?

dk: no, it wouldn't.
not in the way you would prefer.

besides, if you want to play the intent game, why are there so few documents, and such incomplete documentation, concerning the constitutional convention itself if the idea was to generate a future situation in which the proceedings would be set up as THE regulative interpretive framework within which the constitutional system itself operated? my understanding is that the idea at the time was that the proceedings NOT be used in the way you propose. the idea was that what mattered was the document as frame for the unfolding/development/interpretation of law--which necessarily involves an unfolding/development/interpretation of the frame.
the partial records of the convention, the federalist papers ARE NOT LAW.
i hope that is clear enough.

your position on this is simply untenable conceptually, untenable methodologically, and what is more undesirable legally and politically.

what it seems to me you really want to do is throw out the entire american common law system and replace it with a version of the civil law tradition--but the fetishism of the constitution around which this desire seems to hinge prevents you from saying as much. so you go for a parallel type of system that you can pretend is consistent with what exists. it isnt. yours is a radical position, one that is connected to a politics that you are not particularly forthcoming about, except when it comes to guns. even then, you prefer to present your positions on guns as if they were not embedded in a wider context. this makes little sense to me, but that's fine.

I am perfectly willing to acknowledge that after all of the debates concerning the constitution that the authors of said document truly didn't intend to have all individuals have the right to bear arms if someone can show me ANY, ONE SINGLE SHRED, of proof that that argument exists. I know that in politics, it's a matter of practice for the lawmakers to say one thing to the people and then write a law that is completely opposite, but there usually ends up leaving some sort of trail to show that.

Please show me how.

color me confused, I have no idea what you tried to say with this. although I do recognize that you paint an opinion that isn't in line with yours with the word 'radical'.

dk--i havent much time at the moment---

you cant determine my intent in writing this sentence.

you could rake through the piles of paper i drag around with me living space to living space, you could talk to folk who know me in 3-d world and you still coudlnt do it.
you could speculate about it.
you could use your assumptions to try to generate statements that would read as though they accounted for intent as a way of accounting for cause--but the links you would make are entirely a function of your assumptions.
and i am alive now--so far as i can tell at least.
if you cant work out intent in a messageboard post by a contemporary of yours, how can you possibly imagine that you'd be able to do it relative to the framers of the constitution, who have been dead 200 years or so?
arguments about intent are speculative.
(and they are usually uninteresting.)

more to say but no time to say it--gotta go.

addendum:

think of the sentence above as a kind of barrier--meaning can be worked out based on the sequence of words, grammatical functions, etc.: your interpretation is based on the sentence and moves out from it in time--it follows the sentence, refers back to it.

intent would obtain on the far side of the barrier, would be a question of psychological situation at the point of composition (which you cannot really even delimit for yourself as you write a response, if you do)--you could be thinking any number of things--this argument is wrong; roachboy is an asshole (this is a quasi-universal, so often goes without saying in discussion with me); the afternoon is wide open, i would like to barbeque; this chair is falling apart.....intent could be impacted by networks of associations,--it is a difficult state ot even formalize, much less know about, much less know about with any certainty, uch less use as a guide for interpretation.

statements about intent are statements about meaning.
statements about intent are a type of statement about meaning.
they are moves within a game of interpretation of meaning.
for this type of statement to operate as you would prefer it to, there would have to be some kind of agreement about the meaning of this register of statement.
everything that happened within that register would follow from this agreement, and would constitute somethng of a little genre of interpretation, if you took all such statements together.
the conceit of this genre would be that when you talk about meaning, you can somehow thereby talk about intent.
it seems to me that, if you can talk about intent at all, it is in a trivial way--the statement exists and so reflects some level of intent, simply because the fact of the statement indicates something about an intentional state that precedes it--but past that there is nowhere to go, except into the space opened by a community of interpretations that conflate meaning and intent.

sentences are formalized results of actions that exceed the actions.
sentences are like any other work in that the processes behind them tend to drop away, are replaced by the implications of the results, become a space of projection.

within a hypothetical genre of interpretations that conflate meaning and intent, what would be determinate is not the content of the interpretive statements but who controls the genre rules.
it seems to me that this is incoherent except as a political action, one that presumably is rooted mostly in anxiety about the changing meaning of terms in the second amendment.
if you cannot rely upon the existing communities that operate within the game of interpreting the constitution to not dissolve the 18th century notion of milita into something else, for example, then the counter proposal is to create a new interpretive community that would be geared around fixing such definitions in order to prevent this type of interpretation.
it is the same game as that which you oppose, except that folk like you would see their political interests as being advanced by it.
there is no difference in kind between the type of interpretation you propose (based on intent) and that which curently exists (based on meaning).

When does constitutional interpretation equal judicial activism?

When does constitutional interpretation equal judicial tyranny?

when you decide for political reasons of your own to call them such.
neither category has anything like a definite content (judicial activism, tyranny) in this context.
oresumably, for you, dk, any legal action taht endangered your right to have as many guns as you like would be both.


btw: there are conversations about constitutional interpretations happening in two different threads at the moment--both seem to bear on the same questions--i am not sure but what they should maybe be reorganized or consolidated? it'd be good to have the elements in one place, i think.

I'll take a look at that and consolidate as possible tonight. Thanks for pointing that out.

I would have to disagree immensely. Judicial activism can, and should, be defined as a judicial decision that is one that you don't like, but isn't in direct opposition to the constitution or a specific law that is within constitutional boundaries.

Judicial tyranny should be defined as any judicial decision that is in direct opposition to the constitution or declaring constitutionality of a law that is obviously not constitutional.


While that would certainly be the case, I am also referring to such things like Kelo v. new london which is in direct opposition to the 5th amendment, or 'sneak and peek' search warrants which are a complete violation of the 4th amendment. Even the most recent 9th circuit decision regarding the 1st amendment regarding a student wearing an anti-gay shirt with a decision that the 3rd circuit, facing a similar issue, ruled as unconstitutional.

When does it become judicial tyranny and what do we do about it?

Judicial Activism should be defined as something that is bad and is in opposition to the constitution. As a means of democracy as defined and laid out in our constitution, the legislature is the body that implements law, it's a means of accountability to the people. Really judicial activism is something that strips the right of the people/electorate as Judges are not accountable to the public. The sole function of the Judiciary is to regulate law, they interpret, they are not supposed to implement law.

but what constitutes activism or tyrrany is not independent of arguments about interpretations, arguments about whether these interpretations are or are not within the frame of the constitution.
both dk and mojo above act as though there is some agreement on the criteria that would be brought to bear on a given interpretation or series of interpretation independent of argument.

face it: the term "judicial activism" has been floated by a sector of the american right. there is no agreement about its signifieds outside that context.
generally, it is advanced along with arguments from some kind of strict constructionism--which at its most absurd is of a piece with the notion of "original intent"
the two claims work together in that the latter provides the criteria for making the former operative (that is, the charge of "activism")---in the cases where all elements of the argument are in place, then the claim can be evaluated coherently because you have both the claim of "activism" and the "relative to what..."

separating the two and treating "judicial activism" as though it has an independent content seem to me unworkable.

There doesn't have to be an agreement on the criteria, I say there is no room for agreement as it is plainly defined. Law that comes about as a means of judicial implementation is activism, and is unconstitutional.

You can say it has been floated around by the "right", it's true, but it is based off the notion that the "left" and their beloved notion of "will of the people" goes out the window when it comes to issues such as homosexual marriage, abortion, and the phantom constitutional construct of separation of church and State. It's really amusing how the will of the people doesn't so much matter in these cases and the only means of forcing the lefts agenda has been at the behest of the courts and not the legislature as laid out by the constitution.

What is so absurd to you about the notion of constructionism and original intent? Is that really more laughable of modern justices and jurors pointing to foreign law tas a means of constitutional relevance when it is predated by hundreds of years?

Maybe I'm offbase here, I've never had much luck in regards to reading your posts or deciphering/getting information from them, but it seems clear to me that the notion of strict constructionism as a means of curbing judicial activism is independent, it is all simple really, and it has nothing to do with political lines as you try and make; if the courts decision leaves the grounds of interpretation, and is a means of implementation that it is activism and is unconstitutional.

considering that 'original intent' is something that groups of people like to obfuscate by saying that plain text of quotes from the debaters of the constitution is not indicative of intent in regards to the ratified text of the constitution and then try to read something in to the constitution that doesn't exist, or didn't exist back then, but now is perfectly right because it coincides with their political ideology. That is judicial tyranny.

Well, to be honest, I didn't see you quote half a dozen different people on this subject. And of the quotes of yours I did read, none of them seemed to state explicitly what you interpret from them and they aren't from legislative meetings so I'm not sure what bearing they would or should have on interpreting the law as it was intended.

Aside from that, I'm not claiming that anyone necessarily thought opposite of one another. and I'm not suggesting a mere two sides to this issue. I don't even link the 2nd amendment to anything at all about the farmers I was referring to, other than to suggest that the people arguing over what to include in our early documents were thinking in a particular milliue and referenced things they felt were most salient, not necessarily what would secure one's freedom on an objective level. we don't for example see any statements about the deity granted right to read...yet we see the right to freedom of the press, and guns, to take two examples of things the people and their representatives thought had been essential to securing their right to exist as an autonomous nation-state.

I'm simply trying to point out that you are melding a lot of people into a one-mindset mentality, as if you could do so from the votes cast or various statements made and recorded. This is perhaps the best example I can give you:

you, roachboy, jazz, and I are sitting around a table. you suggest that god gave us a right and responsibility to arm ourselves. roachboy thinks perhaps it's a good idea to maintain personal weapons, but not have a standing army. he also thinks in his head, maybe even says as much, that the concept of an active god is silly and so 16th century. I'd rather we have a standing army of sorts, but I see I'm already outvoted, unless jazz is on my side and we've stalemated. rather than risk it, I suggest we word our new legislation to point to the states' responsibilities to maintain order in regards to private ownership of weapons. I don't really care how it's done, I'm agnostic on the whole god thing, but I really think we should make sure we've got some way to protect our new society. jazz doesn't like what any of us are saying for various reasons and leaves the room.

so we write our stuff up and send it over to our colleugues to all vote on. jazz actually votes with us because we agreed to help him out with his free speech thingy...


a couple hundred years roll by and some people start bunting ideas around on an internet board. one of them happens to dig up an op-ed you wrote in the new york times about god giving everyone a right to own weapons. they find a reply by me to you that sure, we all know "god" works in mysterious ways and all that, but it's our responsibility to defend ourselves. he aint going to do it, so whatever else happens, we better maintain a militia. someone notices that all four of us, you, me, roachboy, and jazz voted for the right and assumes that means we all believed in a god given right to have weapons.

3 of us didn't, one of us did. but we all agreed on the end product...what gives?
well, for starters, there isn't anything in the amendment about god giving us that right. so whatever. we can debate on who thought what at the time, but it's all just meandering ramblings. the only meat we have to go on is the stuff that was codified.

now there's lots of valid reasons to argue for private ownership of weapons
there's lots of valid reasons to argue for ownership of weapons to be understood as a defense of the state affair, as opposed to a walk about town affair or keeping a sawed off shotty, tech9, or sks for sport shooting

but there isn't much need to argue over whether the people writing the documents believed in a god-given right to such weapons. as if that makes the claim even more legitimate. it is either legit or it;s not to my mind. you either have a good argument or you don't. it's either valid or invalid, for my purposes. and arguing from tradition or an appeal to higher authority doesn't state your case for you. and as if that wasn't enough, enter all the issues roachboy was trying to lay out...and hopefully my example illuminates why we both think you run into all sorts of problems when trying to decipher meaning of legislative manuevers in the manner you are trying to do.

I know it's not the middle of the night, but I'm just popping in from my supposed studying for comps so I shouldn't even be here. hopefully this quick and dirty post clarifies what I was trying to get at when I stopped by earlier.

my opposition to your argument stemmed from the way in which you laid it out, not some fundamental disagreement I have with private gun ownership (because I don't have one, for one thing).

smooth, as round about and story telling as your post was.....I found it enlightening, informative, entertaining, and thought provoking.

I see what you were saying. thanks. great post.

i am not saying that "judicial activism" is the only political category that has become associated with the actions of judges who occupy a particular political position--i am saying that it is not different in kind.

or: it is also a political category.

political categories are evaluated like any other argument is--you know, how they fit with the information that they are supposed to speak to. so when thinking about the "activism" of a generation of judges, say, in the context of claims to the will of the people, you evaluate them by a sense of fit--that is, you evaluate them politically.
you talk about "what is there" in the constitution in a context that you know entails a kind of pretext for cutting back law that you dont like politically (think roe v. wade) because the premise undercuts the legitimacy of precedent/interpretations advanced under the rubric of "liberal" judges or "judicial activists"--that is political.

or: the idea that it makes sense to assume that a document like the constitution is static at the levels of meaning is also a political choice.

say there were sometime lots of strict constructionist judges.
if the language in the constitution is not stable at the level of meanings (you know, not wholly unstable, but not wholly stable either) then it will effectively be declared stable in particular areas by strict constructionist style judges as a function of cases and, of course, relevant political considerations. this because no-one is in a position to simply change the rules all at once, you see--so change would be piecemeal, like alzheimer's fading in. these declarations will be the prerogative of certain people, who will be in the main not elected, not accountable to any democratic process---they will also engage in judicial activism. maybe radical acts of judicial activism, because declaring elements of the constitution to be static just seems like a radical thing to do.

but maybe i'm wrong and that would not be judicial activism or tyranny or whatever.
they're your terms, so you get to decide.

I don't even know where to start with this one... Mojo - can you clarify? Something that is bad is terrifyingly vague, unless you are just saying that judicial activism is inherently bad, whatever it may actually be. I have a feeling you meant something more than this though.

I get the point about courts being limited to affirming or striking down laws, but I don't think that it is particularly accurate. For instance the Supreme Court has long used "tests" like the Miller test for obscenity or the Lemon test for religious establishment. What could these possibly represent other than methods of defining the application of law - certainly beyond the mere affirmation/disqualification that you seem to feel is the proper limit of the court's power.

Extending your view of legislative pre-eminence a bit further (and tell me if I'm off, please - I'm not trying to put words in anyone's mouth), I'm concerned about checks and balances. The legislature makes laws, and the courts rule on them - affirming, striking down, limiting, and defining acceptable applications (as I mentioned above). The courts do not write new laws. Period. To limit the courts' power further is to extend the power of the legislature over the court - which to me seems inappropriate. The court is SUPPOSED to be a step removed from the will of the people. The proper limit that the legislature can impose is in confirmation, impeachment, and amendment. Other than these steps, the laws are intended to be in the hands of the executive and judicial branches.

I don't think I've seen a charge of judicial activism yet that amounts to meaning more than "bad because I disagree with it". Kelo v. New London isn't judicial activism as much as it is (possibly) just a bad finding. The case came to the Supreme Court properly, they ruled, and we don't like it. That's not activism, it's just disagreeable.

Activism is bad as DK on the last page, seemed to brush it off as something we don't like but is ultimately ok; I'm stating it is not good, I think you might have been reading too much into it.

As for the rest of it...
I think you answered your own question with your "defining the application of law" comment. Your examples really only apply to questions of government controversy, such as the lemon test. I'll agree that the judiciary can define the application of law, but that is bound by jurisdiction and how it relates to the government being a party to a controversy, something that is affirmed by word in the constitution. Defining application isn't the same as straight up rendering a decision that has no constitutional basis and it having pro-active repercussions as standing law. I think we pretty much agree on everything here, I think it is just a subjective pretext that we are both working with. Your subjective approach is that activism is derived from a subjective approach; my subjective approach is that it isn't.

I hope I don't mischaracterize your position, or what I've learned...

as for strict constructionist...I don't think it's at as much odds with common law as you are thinking.

our legal roots, grounded in common law, are also grounded in a particular strain of legal reasoning: 'natural law'

this coincides with the growth of our nation, when American jurists, influenced by Locke and other political philosophers, were trying to establish the nation-state. Locke naturalized things like the economy (capitalism, the market, private property), the State, and etc.

this produces a hodge-podge of legal rulings, depending on which philosophies a particular jurist adhered to. (Mensch referred to this pre-classical era as "conceptual mush")

in the classical period (1885-1920) we have jurists turning to the Constitution as a source of law due to the need of a formal way of arriving at legal outcomes. C.C. Langdell argued that legal reasoning was like a science. this becomes legal formalism

this form of reasoning holds to the belief that law is law and society is society. think of law as a box, and social norms/values should and do not enter into that box; law is objective; law's tenets can and must be found within law; one should and must not look outside that box of reasoning for the premises of law; in order to learn how to "think like a lawyer" one must study case after case after case until one learns, inductively, what the logic of law is and how it operates

central tenet of formalism is that guilt is established through intent. intent is, as we've learned in debates about 2nd amendment, hate crime, for example, is difficult and sometimes impossible to ascertain.

as we developed from an agrarian society where we each took care of our own basic needs to a complex society where we each rely on one another for certain roles, a way of balancing intent with liability becomes a real problem...

if we were to hold people strictly liable (no demonstration of intent necessary), who would develop anything if they were assumed to be strictly liable?
what about strictly non-liable? who would consume if producers were never liable for anything? how could I eat a tomato if I couldn't be assured, or at least feel comfortable, knowing that the producer is developing them safely?

(cf. Weber's formal rationality and it's intersection with the growth of our version of capitalism; and now you can begin to see in our law, as well, as necessary prerequisite)

we start to see some very troubling logic in rulings in the early 20th centuray. logic that awakens the minds of critical legal scholars... (where incicentally, elphalba, we witness some extremely "activist" judicial rulings, but from the conservative , or laissez-faire side of the aisle, particularly in rulings like Coppage v. Kansas 1915)

20's to 30's
nation is struggling, stammering with a whole slew of social ills and cracks in the edifice of unbridled capitalism...and this paradigm shift occurs, and along with it this new way of looking at things through a prism of social sciences, and in particular American sociology.

and so we have Holmes and Pound writing from Harvard about how to integrate social science into law--how to balance intent with liability, how to practice substantive law. that the box between society and law is not so neat and tidy. that we ought to have a "sociological jurisprudence"

out of their writings springs legal realism movement changing the face of law
they demonstrate the fact that "rights" are not a priori. private property is not to be "found" in law, but is created in action. heavily influenced by pragmatism (not the get things done commonsensical notion of the word now, but the philisophical meaning that meaning springs from action)
the recognition that one's rights to engage in business sometimes, perhaps often, contradicts one's rights to private property (we are witnessing this contradiction right now in the debate over eminent domain)
the logic of legal formalism is contradictory, they conclude

but we have a problem...
now we are allowing men to think and read social interaction into the law
Hitler and Mussolini and the rise of fascism make it very threatening that law may not be autonomous from society
ruling by law is much more palatable than ruling by men. the "realist challenge" dies down in the influx of formalism values to ensure the validity and security of a formal rational legal system

scholars manage to argue successfully that althogh the laws may not be unbiased, the process certainly is (the process school). we can trust the system, if not necessarily the content within it.

by and large, our american jurisprudence continues to adhere to the basic assumptions of formalism


I wanted to get this out so people could see our trajectory of legal reasoning.
and also because it struck me that roachboy was wondering what the allure of strict constructionism would be (or maybe not, but it looked as though)
that is reinforces laissez-faire capitalism, the growth of our nation and economy, our particular form of personal values of autonomy and etc, and also how to maintain status quo (the function of law, one could argue)

(but also while maintaining social order, perhaps failing to address social injustice or social ills/needs)
maybe I'll have to come back and tie pieces in but perhaps this is hopeful...

I may be able to clarify some of the sticking points you're encountering in one post (maybe my last one helps, as well):

the right to privacy was "read into" the constitution to understand how the constitution could include a right to be free from government intrusion in certain affairs (personal effects, press as thought/expression, right to contract between individuals, for example)

the words used were the recognition of a "penumbra" of rights. a hazy sort of aura that must exist, must according to the reasoning, if those rights were to be held valid. that is, while the constitution doesn't explicitly argue for a right to privacy, it must be assumed if one is to have a right to be free in his own home from government intrusion, for instance.

interstate v. intrastate
yes, in agrarian society farmers were growing for their own
but as we moved into industrial society, that legal logic runs into trouble

if a farmer in one state must deal with state laws regulating tobacco, for example, then he will have to deal with his own state laws, and all of the states his commodity will pass through to get to New York smokers.
so while it looks confusing when a peanut farmer grows peanuts to eat, how does that become interstate, but not when we recognize that other peanut farmers were shipping their stuffs to other states.

this recognition may come in handy: SCOTUS decisions, although they appear to be handling individual disputes, are not meant to be observed or understood as such. disputes are handled in the various state courts. supreme decisions are reserved for items of social import, not policy. which is one of the reasons they only take the cases they want to, without political retribution (as article 3 judges) or explanation of their decisions to take or not take an individual case. they wait until sufficient discord between the states exists to warrant a social clarification.

I didn't say activism was ok, I said that activism is a move/decision that, while not in conflict or in opposition of the constitution, isn't within the constitution. It's like saying that such and such this is not illegal because it's not in the constitution or written in the law, therefore it's legal. We don't like it, but it's perfectly legal, therefore we call it activism.

Tyranny, on the other hand, IS illegal and unconstitutional because it is a ruling that is in direct opposition with the stated intent or terms/laws of the constitution.

I'd actually call that ruling in accordance with the 10th amendment. Maybe I'm misunderstanding you though.

yes and no. I hate to use this example, but abortion is an example of activism. Using the 'right to privacy' claim to make abortion legal is not against the constitution, per se, it makes it activism by making a law within the judiciary where they have no power to do so. A decision liked by some, disliked by others. Does it violate the 10th? Yes and no, in that it takes away the states ability to decide that by invoking the 4th and 14th.

I think that dksuddeth has a pretty accurate interpretation of activism. Its neither a good nor bad thing, just like any tool. To take it a step farther, I think that most strict interpretationists dislike activism because it hems them in and forces them to follow the activists. Strict interpertation not only requires that judges follow what is in the Constitution but also how that wording has been interpreted in the past (precendents). Every single constitutional question, no matter how minute, requires interpretation of the document in every single instance. There's no way around it. Once an activist judge sets the prescendent and it is upheld, interpretationalist judges have to accept that prescedent as the law of the land for as much as it is relevent in whatever case is before them. A judge who believes that there's no constitutional protection for abortion (regardless of her personal thoughts on the issue), has to follow the Roe v. Wade decision when faced with something like the South Dakota suits that are brewing.

Judges can't just give a yes-or-no answer on most of these issues. They have to explain themselves and show why their decision is the correct one and what it means to the rest of the world. That happens regardless of how much of an activist a judge may or may not be.

To say that activism is only a tool used by politically liberal judges or the Left as a whole is incredibly myopic. The first truely activist decisions were all heavily conservative (Dred Scott, anyone?), and there's been a real resurgence of conservative activists on the bench in recent years. They are more prevalent in state courts than federal, but they are out there doing their thing.