Constitutional Interpretation - Tilted Forum Project Discussion Community

ubertuber · 04-11-2006, 08:58 AM

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:

Quote:

Originally Posted by NY Times - I think it requires a membership and possible a "select account"

Antonin Scalia is the most theatrical of the present Supreme Court justices. (He’s also the best stylist, but that’s a subject for another day.) It’s not clear whether he seeks the spotlight or it seeks him, but he seems incapable of not occupying it. In the past couple of months he has responded to a reporter’s question with a gesture thought by some to be obscene — he denies this — and, in a speech given to the Federalist Society in Puerto Rico, he characterized those who disagreed with him on a point of interpretive theory as “idiots.”

He was talking about the view, which he has often criticized but not yet succeeded in killing, that the meaning of the Constitution changes as society changes. Rather than being fixed in time, the Constitution (the story goes) is continually evolving in response to unforeseen circumstances and improvements in our moral and political understanding. In short, the Constitution is a living organism, not a dead letter.

In the speech in Puerto Rico, Justice Scalia rehearsed the argument — “The Constitution … has to change with society …” — and then brusquely dismissed it: “But you would have to be an idiot to believe that.” The indignant bloggers and commentators who accuse him of everything from arrogance (there’s something to that) to racism act as if this bit of name-calling were all Justice Scalia had to offer. But in fact he immediately offered the reasons for his severe judgment. First, he reminded his audience of the obvious: “The Constitution is not a living organism, it is a legal document.” And then he explained succinctly, and in my view correctly, what it means to be a legal document or, for that matter, any kind of document at all. “It says something and doesn’t say other things.”

This might strike some as cryptic, so let me provide a gloss. A document (or text) is a vehicle of communication, and for communication to occur, some message, not all messages, must be conveyed. A document that said everything — that had no particular meaning, but various and expanding meanings — would say nothing; it would be not a document but a kaleidoscope or a Rorschach test. The Constitution is most certainly a document, and therefore it must say something, and it is the job of interpreters to figure out what that something (which can’t be everything) is.

Not only does this argument make perfect sense; the integrity and seriousness of the interpretive effort depend on it. Only if the Constitution is assumed to send a message that does not change over time can the claim of an interpretation to be right or an assertion that it is wrong be intelligible. In order to be right or wrong about something, that something must precede, and be independent of, your efforts to figure out what is. What a document is at the beginning — when it is drafted — will always be what it is. The Constitution cannot be a living organism.

Justice Scalia’s critics do not respond to this chain of reasoning, but instead pose what they take to be a series of devastating questions. If the Constitution’s meaning is fixed and unchanging, asks Paul Greenberg, a columnist for the Joplin Globe in Missouri, how do you explain the fact that it has been “subject to different interpretations over the years?” Easy. Justice Scalia’s thesis is not that the Constitution’s meaning will be perspicuous and agreed on by everyone. His thesis is that the Constitution has a meaning. The history of its interpretation is a history of successive efforts to specify what that meaning is. Each of these efforts will produce a different account of that meaning, but the meaning itself will always be the same. For if it were not, there would be no point to the history.

But isn’t it true (a second question) that the meanings of words themselves change? Yes, they do, which is why it is important to determine (if you can) what the original author(s) meant by a word and not go immediately to what you mean by it or to what you might want it to mean, for you are not the author.

Is Justice Scalia saying (a third question posed by blogger Wayne Besen) that “American jurisprudence has not evolved in two centuries?” No, he is identifying the jurisprudential goal, which is to figure out what the Constitution means. In time, interpreters may draw closer to that goal or move further away from it, and in some sense their efforts are evolving but the meaning they are in search of does not evolve (for if it did there would be nothing to search for).

In general, Justice Scalia’s critics confuse a fact about the history of interpretation (it will produce different results at different times) with an interpretive mandate (the job is to produce different results as society needs them). The fact follows from the non-transparency (sometimes, not always) of language and the fallibility of interpreters. The mandate, were it acted upon in the name of a Living Constitution, would direct us not to interpret better, but to abandon interpretation altogether in favor of making the text mean what we want it to mean. Those who think we should go this route may not be idiots, but they are certainly wrong.

dksuddeth · 04-11-2006, 09:10 AM

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.

The_Jazz · 04-11-2006, 10:50 AM

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.

dksuddeth · 04-11-2006, 11:27 AM

Quote:

Originally Posted by The_Jazz

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.

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.

Quote:

Originally Posted by The_Jazz

The "hodgepodge mix of interpretations" that my esteemd collegue dksuddeth Thank you good sir 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.

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.

flstf · 04-11-2006, 11:36 AM

Quote:

Originally Posted by The_Jazz

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.

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.

The_Jazz · 04-11-2006, 11:52 AM

Quote:

Originally Posted by dksuddeth

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.

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.

Quote:

Originally Posted by dksuddeth

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.

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.

The_Jazz · 04-11-2006, 11:55 AM

Quote:

Originally Posted by flstf

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.

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.

dksuddeth · 04-11-2006, 12:03 PM

Quote:

Originally Posted by The_Jazz

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?

ubertuber · 04-11-2006, 12:12 PM

Quote:

Originally Posted by The_Jazz

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.

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.

Ustwo · 04-11-2006, 12:19 PM

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.

Quote:

Scalia critical of what he calls the "judge-moralist"

March 15, 2006

BOSTON --U.S. Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.

The 70-year-old justice said the public, through elected Legislatures -- not the courts -- should decide watershed questions such as the legality of abortion.

Scalia decried his own court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.

He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

Noting that the Senate confirmed his high court nomination by a 98-0 vote, Scalia said, "You could not get a judge with my views confirmed to the Court of Appeals today."

He said code words such as "mainstream" and "moderate" are now used to describe liberal judicial nominees.

"What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?" he said.

Scalia, a well known as a strict "constructionist" in his interpretation of the Constitution, opened his remarks by saying, "I brought three speeches, and I decided to give the most provocative one, because this seems to be too happy a crowd."

Margaret Marshall, chief justice of the state Supreme Judicial Court, and author of the controversial decision that legalized gay marriage in Massachusetts, was scheduled to sit at the head table with Scalia, but was absent due to illness.

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.

ubertuber · 04-11-2006, 12:27 PM

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

Ustwo · 04-11-2006, 12:58 PM

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

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

Elphaba · 04-11-2006, 01:02 PM

Ubertuber

Quote:

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.

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.

dksuddeth · 04-11-2006, 01:11 PM

Quote:

Originally Posted by Ubertuber

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.

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.

Quote:

Originally Posted by Elphaba

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.

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.

Quote:

Originally Posted by Elphaba

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.

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?

Elphaba · 04-11-2006, 01:22 PM

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.

The_Jazz · 04-11-2006, 01:31 PM

Quote:

Originally Posted by dksuddeth

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

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.

dksuddeth · 04-11-2006, 01:33 PM

Quote:

Originally Posted by Elphaba

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.

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.

dksuddeth · 04-11-2006, 01:34 PM

Quote:

Originally Posted by The_Jazz

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.

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.

ubertuber · 04-11-2006, 01:39 PM

Quote:

Originally Posted by The_Jazz

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.

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?)

The_Jazz · 04-11-2006, 01:48 PM

Quote:

Originally Posted by Elphaba

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.

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.

Quote:

Originally Posted by Elphaba

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.

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?

The_Jazz · 04-11-2006, 02:00 PM

Quote:

Originally Posted by ubertuber

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

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.

flstf · 04-11-2006, 02:10 PM

Quote:

Originally Posted by The_Jazz

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?

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?

The_Jazz · 04-11-2006, 02:16 PM

Quote:

Originally Posted by flstf

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.

flstf · 04-11-2006, 02:34 PM

Quote:

Originally Posted by Ustwo

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.

The more I read about Scalia the more I tend to agree with him. His question:

Quote:

"What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?".

is probably not far off the mark except sometimes I wonder if they even go halfway.

Elphaba · 04-11-2006, 03:03 PM

Dksuddeth

Quote:

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

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?

Mojo_PeiPei · 04-11-2006, 04:02 PM

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

Quote:

Section 10 - Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

roachboy · 04-11-2006, 04:22 PM

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.

dksuddeth · 04-11-2006, 04:55 PM

Quote:

Originally Posted by Elphaba

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?

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.

dksuddeth · 04-11-2006, 05:08 PM

Quote:

Originally Posted by roachboy

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.

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.

Elphaba · 04-11-2006, 05:27 PM

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.

roachboy · 04-11-2006, 06:55 PM

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.

dksuddeth · 04-12-2006, 03:30 AM

Quote:

Originally Posted by roachboy

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.

smooth · 04-17-2006, 04:53 AM

Quote:

Originally Posted by dksuddeth

study history some more, especially world history. When one side has all the guns, it's easy to commit massacres.

If you'll notice, the bill of rights mentions nothing about slaves or women. It specifically refers to individual rights. As time went on and slavery came to be regarded as oppression, it was remedied with another amendment (13th). When the southern states grudgingly dealt without slavery, they still treated blacks as second/third class people, so along came the 14th amendment.

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.

dksuddeth · 04-17-2006, 06:42 AM

Quote:

Originally Posted by smooth

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.

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.

smooth · 04-18-2006, 11:53 AM

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.

The_Jazz · 04-18-2006, 12:16 PM

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.

dksuddeth · 04-18-2006, 12:45 PM

Quote:

Originally Posted by smooth

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.

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.

smooth · 04-18-2006, 05:44 PM

Quote:

Originally Posted by dksuddeth

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.

dksuddeth · 04-18-2006, 06:43 PM

Quote:

Originally Posted by smooth

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.

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

Quote:

Originally Posted by The_Jazz

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.

Quote:

Originally Posted by smooth

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.

lets hear it.

Quote:

Originally Posted by smooth

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

why would that be relevant?

Quote:

Originally Posted by smooth

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

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.

Quote:

Originally Posted by smooth

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.

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.

Quote:

Originally Posted by smooth

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

Quote:

Originally Posted by smooth

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.

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.

smooth · 04-18-2006, 07:33 PM

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?

04-11-2006, 09:10 AM	#2 (permalink)
dksuddeth Junkie Location: bedford, tx	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. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

04-11-2006, 10:50 AM	#3 (permalink)
The_Jazz Asshole Administrator Location: Chicago	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. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

04-11-2006, 12:27 PM	#11 (permalink)
ubertuber spudly Location: Ellay	Ustwo, that's a good article that gives an illuminating look at Scalia's views. Where'd you get it? __________________ Cogito ergo spud -- I think, therefore I yam

04-11-2006, 12:58 PM	#12 (permalink)
Ustwo Pissing in the cornflakes	http://www.boston.com/news/local/mas...a_critical_of/ Meant to post link but didn't take time to proof read at work. __________________ Agents of the enemies who hold office in our own government, who attempt to eliminate our "freedoms" and our "right to know" are posting among us, I fear.....on this very forum. - host Obama - Know a Man by the friends he keeps.

04-11-2006, 04:22 PM	#27 (permalink)
roachboy Super Moderator Location: essex ma	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. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite Last edited by roachboy; 04-11-2006 at 04:27 PM..

04-11-2006, 01:22 PM	#15 (permalink)
Elphaba Deja Moo Location: Olympic Peninsula, WA	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.

04-11-2006, 05:27 PM	#30 (permalink)
Elphaba Deja Moo Location: Olympic Peninsula, WA	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.

04-11-2006, 06:55 PM	#31 (permalink)
roachboy Super Moderator Location: essex ma	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. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

04-18-2006, 11:53 AM	#35 (permalink)
smooth Junkie Location: Right here	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. __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

04-18-2006, 12:16 PM	#36 (permalink)
The_Jazz Asshole Administrator Location: Chicago	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. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

04-18-2006, 07:33 PM	#40 (permalink)
smooth Junkie Location: Right here	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? __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman