What's your brand of constitutional interpretation?

[Vanquish]

It should be applied as written and not interpreted, it isn't cuniform.

If part of it no longer works or is unwanted there is a procedure for change.

Of course, the current government just ignores it now.

It is impossible to read the Constitution, and not interpret what you read. That goes for anything you read. To state that the Constitution should not be interpreted in any manner what so ever, is dangerous and naive.

Law is not a river that every time you step in, it changes. There's no purpose in having a written document if you're not holding people to what is written.

If judges can just make it up, then it's entirely illusory.

I'll give you that legislative intent can clear up grey areas. I've done enough research of floor debates to admit that. It's debatable whether the founding fathers meant their individual writings to speak for the entirety of the group. It speaks to each one, but not "necessarily" to the whole.

And are there times when neither the plain meaning of the law, nor the legislative intent, nor the precedent can yield something clear at all?

Unfortunately yes. But that's not the majority of the time.

 

[goldcatt]

It should be applied as written and not interpreted, it isn't cuniform.

If part of it no longer works or is unwanted there is a procedure for change.

Of course, the current government just ignores it now.

It is impossible to read the Constitution, and not interpret what you read. That goes for anything you read. To state that the Constitution should not be interpreted in any manner what so ever, is dangerous and naive.

Law is not a river that every time you step in, it changes. There's no purpose in having a written document if you're not holding people to what is written.

If judges can just make it up, then it's entirely illusory.

I'll give you that legislative intent can clear up grey areas. I've done enough research of floor debates to admit that. It's debatable whether the founding fathers meant their individual writings to speak for the entirety of the group. It speaks to each one, but not "necessarily" to the whole.

And are there times when neither the plain meaning of the law, nor the legislative intent, nor the precedent can yield something clear at all?

Unfortunately yes. But that's not the majority of the time.

I can't think of too many times when judges just "made it up". I happen to be a non-originalist and a pragmatist, but even from that position adherence is required. It's a matter of how narrow, or how broad, you see the language when you read and interpret it.

Going back to my previous "Common Defense" example, someone who reads the language very narrrowly might interpret the common defense as only a standing Navy and an Army whose existence must be reauthorized every two years, since those are the only defense institutions explicitly authorized. A person who reads the language very broadly might believe it encompasses anything that could affect national security whether directly related or not. That is where the courts come in to make the final decision, and why they occasionally overturn themselves as the pendulum swings. BUT, and this is important, both sides are adhering to the written words, it's not just coming out of nowhere. They simply interpret them differently.

 

[veritas]

It is impossible to read the Constitution, and not interpret what you read. That goes for anything you read. To state that the Constitution should not be interpreted in any manner what so ever, is dangerous and naive.

Law is not a river that every time you step in, it changes. There's no purpose in having a written document if you're not holding people to what is written.

If judges can just make it up, then it's entirely illusory.

I'll give you that legislative intent can clear up grey areas. I've done enough research of floor debates to admit that. It's debatable whether the founding fathers meant their individual writings to speak for the entirety of the group. It speaks to each one, but not "necessarily" to the whole.

And are there times when neither the plain meaning of the law, nor the legislative intent, nor the precedent can yield something clear at all?

Unfortunately yes. But that's not the majority of the time.

I can't think of too many times when judges just "made it up". I happen to be a non-originalist and a pragmatist, but even from that position adherence is required. It's a matter of how narrow, or how broad, you see the language when you read and interpret it.

Going back to my previous "Common Defense" example, someone who reads the language very narrrowly might interpret the common defense as only a standing Navy and an Army whose existence must be reauthorized every two years, since those are the only defense institutions explicitly authorized. A person who reads the language very broadly might believe it encompasses anything that could affect national security whether directly related or not. That is where the courts come in to make the final decision, and why they occasionally overturn themselves as the pendulum swings. BUT, and this is important, both sides are adhering to the written words, it's not just coming out of nowhere. They simply interpret them differently.

The Constitution is full of definitions that define themselves and we abridge and add as we go. We no longer are constrained by sea and land, we invented airplanes and satellites and rockets, we control the air and space, this is not something the framers specifically allowed for, but tacitly. We see it fits in our "common defense" category, so we pencil it in. The Constitution never mentions women. But we've cobbled together some US Code to address that, even though the ERA Amendment is being introduced yet again in 2009. We are still arguing the definition of "militia" at this late date with respect to the 2nd Amendment. What constitutes a militia these days? A group of well armed good ole boys? And what militant purpose do they seek to serve within the defense infrastructure?

I say we are not even close to interpreting it, we're in the middle of interpretational arguments that have been going on since the Constitution's ink just dried. I could argue that the general welfare is integral to the common defense. Why not? Is not a healthy, able population the resource from which defense is maintained? Is not a healthy and productive farmer just as necessary as a soldier? Soldier's gotta eat. Is not having a healthy female population base necessary to keeping the population steady and full of potential farmers and soldiers? It's all interrelated as I interpret it.

 

[Vanquish]

So there are no absolutes and we're all just winging it. Wow, that's comforting.

 

[BasicGreatGuy]

It should be applied as written and not interpreted, it isn't cuniform.

If part of it no longer works or is unwanted there is a procedure for change.

Of course, the current government just ignores it now.

It is impossible to read the Constitution, and not interpret what you read. That goes for anything you read. To state that the Constitution should not be interpreted in any manner what so ever, is dangerous and naive.

Law is not a river that every time you step in, it changes. There's no purpose in having a written document if you're not holding people to what is written.

If judges can just make it up, then it's entirely illusory.

I'll give you that legislative intent can clear up grey areas. I've done enough research of floor debates to admit that. It's debatable whether the founding fathers meant their individual writings to speak for the entirety of the group. It speaks to each one, but not "necessarily" to the whole.

And are there times when neither the plain meaning of the law, nor the legislative intent, nor the precedent can yield something clear at all?

Unfortunately yes. But that's not the majority of the time.

I believe in a strict adherence thereto. I don't believe in playing loose with the law to fit the whims of any person(s).

Judges and lay people alike have been interpreting the law for years. Right or wrong, it is what it is.

A lot of political differences and factions today are born from a dfiference in interpretation, when it comes to Article 1, Section 8. As clear as it may be for me, others may read it, and interpret it differently, for a plethora of reasons. Heck, there are even differences as to methods of interpretation.

Sometimes interpretation is good, and sometimes it is bad.

 

[goldcatt]

Law is not a river that every time you step in, it changes. There's no purpose in having a written document if you're not holding people to what is written.

If judges can just make it up, then it's entirely illusory.

I'll give you that legislative intent can clear up grey areas. I've done enough research of floor debates to admit that. It's debatable whether the founding fathers meant their individual writings to speak for the entirety of the group. It speaks to each one, but not "necessarily" to the whole.

And are there times when neither the plain meaning of the law, nor the legislative intent, nor the precedent can yield something clear at all?

Unfortunately yes. But that's not the majority of the time.

I can't think of too many times when judges just "made it up". I happen to be a non-originalist and a pragmatist, but even from that position adherence is required. It's a matter of how narrow, or how broad, you see the language when you read and interpret it.

Going back to my previous "Common Defense" example, someone who reads the language very narrrowly might interpret the common defense as only a standing Navy and an Army whose existence must be reauthorized every two years, since those are the only defense institutions explicitly authorized. A person who reads the language very broadly might believe it encompasses anything that could affect national security whether directly related or not. That is where the courts come in to make the final decision, and why they occasionally overturn themselves as the pendulum swings. BUT, and this is important, both sides are adhering to the written words, it's not just coming out of nowhere. They simply interpret them differently.

The Constitution is full of definitions that define themselves and we abridge and add as we go. We no longer are constrained by sea and land, we invented airplanes and satellites and rockets, we control the air and space, this is not something the framers specifically allowed for, but tacitly. We see it fits in our "common defense" category, so we pencil it in. The Constitution never mentions women. But we've cobbled together some US Code to address that, even though the ERA Amendment is being introduced yet again in 2009. We are still arguing the definition of "militia" at this late date with respect to the 2nd Amendment. What constitutes a militia these days? A group of well armed good ole boys? And what militant purpose do they seek to serve within the defense infrastructure?

I say we are not even close to interpreting it, we're in the middle of interpretational arguments that have been going on since the Constitution's ink just dried. I could argue that the general welfare is integral to the common defense. Why not? Is not a healthy, able population the resource from which defense is maintained? Is not a healthy and productive farmer just as necessary as a soldier? Soldier's gotta eat. Is not having a healthy female population base necessary to keeping the population steady and full of potential farmers and soldiers? It's all interrelated as I interpret it.

We are in fact still having the same arguments the Framers before, during, and immediately after drafting. That's healthy IMO. The entire constitution is designed to have unresolvable but manageable tensions, why should the opinions of it be any different? It's what keeps us young.

 

[veritas]

So there are no absolutes and we're all just winging it. Wow, that's comforting.

We're winging it pretty well, I'd say. We are the oldest continuous form of government on the planet.....despite being a "new" country. Amazing, eh?

 

[Mr.Fitnah]

What's your brand of constitutional interpretation?

Both constitutional and semantic constructionist....No interpretation needed.

The interpretation thingy is part and parcel to the "living rules" crowd, who are in fact in favor of no rules at all.....save for the rules made up out of whole cloth as they go along.

Yeah it is clearly handcuffs on the government, not the people.
The more they attack it the more freedom we lose.

 

[Diuretic]

Amendment is of course part of the intended process, but revision based on whatever current judge is interpreting isn't.

You can have a living document with amendment being the agent of change, not the judges.

Amendment - as I understand it - is a major process and possibly limited to the big questions. I do think that amendment of a written constitution should be, not difficult, but a process of slow and lengthy deliberation. Since popular opinion is easily inflamed (I'm half-remembering those words from somewhere, I hope to hell I'm not referencing Goebbels ). An amendment shouldn't lie solely with legislators. Truth is I don't know how the process should be mixed up between the various stakeholders (jargon watch! I wrote "stakeholders"!) but no one grouping should have ultimate control of the process to the exclusion of others.

Interpretation is not amendment. Interpretation is part of the process of application. I don't see how anyone other than a country's highest court can do that. It is the duty of the judges.

So you're saying that depending on who the judge is the same law could and should be interpreted differently? And at different times, depending on what's going on in the world, it could be interpreted differently?

Wow. Uhm, no. That's not what judges do.

Nope - interpretation of a written constitution, I am saying, should be the province of the highest court, not a subordinate court. When I wrote, "it is the duty of the judges," I should have clarified that I was referring to the judges on the bench of the highest court.

 

[Diuretic]

It's amazing how they find things in it that aern't written in it.

Hermeneutics.

 

[Vanquish]

It is impossible to read the Constitution, and not interpret what you read. That goes for anything you read. To state that the Constitution should not be interpreted in any manner what so ever, is dangerous and naive.

Law is not a river that every time you step in, it changes. There's no purpose in having a written document if you're not holding people to what is written.

If judges can just make it up, then it's entirely illusory.

I'll give you that legislative intent can clear up grey areas. I've done enough research of floor debates to admit that. It's debatable whether the founding fathers meant their individual writings to speak for the entirety of the group. It speaks to each one, but not "necessarily" to the whole.

And are there times when neither the plain meaning of the law, nor the legislative intent, nor the precedent can yield something clear at all?

Unfortunately yes. But that's not the majority of the time.

I believe in a strict adherence thereto. I don't believe in playing loose with the law to fit the whims of any person(s).

Judges and lay people alike have been interpreting the law for years. Right or wrong, it is what it is.

A lot of political differences and factions today are born from a dfiference in interpretation, when it comes to Article 1, Section 8. As clear as it may be for me, others may read it, and interpret it differently, for a plethora of reasons. Heck, there are even differences as to methods of interpretation.

Sometimes interpretation is good, and sometimes it is bad.

Welcome to the thread.

Just because people CAN read something differently doesn't mean they should.

 

[Mr.Fitnah]

It's amazing how they find things in it that aern't written in it.

Hermeneutics.

Hardly necessary for a document written so elegantly, one must set out to deliberately miseducate people for generations before you can convince them of its error.

 

[veritas]

But I don't think in practice the Constitution itself is interpreted outright. Somebody thinks they were done wrong and sues, then they appeal so along every step an argument is made using the Constitution by trying to fill in the blanks. They're looking for a way to get their point across and their alleged "unfair" to match up. The Constitution stands still. The issue moves according to the rationale the arguer tries to make. If the fit is good enough, and there is some sort of congruent principle that is illustrated, then a cubby hole is made available to include it.

There aren't laws for every little thing. Sometimes things are slightly out of rack and there should be laws........but there aren't, so we compensate by process and complaint. It's an organic process. Constitutionality is argued by citing precedents and relating them to the situation at hand. Not by parsing the Constitution.

 

[nodoginnafight]

So there are no absolutes and we're all just winging it. Wow, that's comforting.

IMHO - it is more like we are doing our best to apply the constitution as uniformly as possible to a very diverse set of circumstances. The constitution cannot be reduced to binary code - you can't just type your case into a computer and have it spit out the correct application.

I think some flexibility is necessary, but that flexibility must not exceed the bigger framework of what makes the United States the United States. I think the human factor has always been an important part.

Some people are very unconfortable with ambiguity. They don't like the idea that there are some things that are neither black or white. I can understand that, but I think without that degree of flexibility, our constitution would not have lasted as long as it has. And I think it's pretty well set up for the future as well.

 

[PLYMCO_PILGRIM]

I find it interesting that traditionally religious types, Conservatives and such, are in more favor of a literal interpretation of the Constitution.

However, I am also in favor of a literal interpretation of the Consititution, strangely enough, I just have a different interpretation of what it "literally" says.

For instance, and what probably led directly to this thread, when I see the term "Provide for the General Welfare" I believe it means, literally, just that. Provide for the general welfare.

I happen to think that Health Care is included in the category of General Welfare, just like Machine Guns are included in the category "Provide for the Common Defense".

That is a literal interpretation, just not one that some people happen to agree with.

Now, the bible, on the other hand, is very open to non-literal interpretation, IMO.

The constitution does not say provide for the general welfare. It says PROMOTE the general welfare.

Since you take it literally you must now change your premise which you based that opinion on as promote does not mean provide.

Some light reading http://www.usconstitution.net/const.txt

We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.

As you see they do use th word provide, but it is for the common defence (IE a military, the second ammendment).
With the talk about general welfare their role, in the constitution, is to be a cheerleader but not a player.

 

[JakeStarkey]

So there are no absolutes and we're all just winging it. Wow, that's comforting.

Then we die. That's mortality: no going back and re-doing. So hopefully each of us makes the most of our lives and do it so that our legacy is framed in the memory of others' smiles.

 

[Liability]

The constitution is a living, breathing document. Judicial review and interpretation are necessary to apply constitutional principles to contemporary, individual cases.

100% wrong. It is absolutely not a "living breathing document" in any way and was never intended to be.

The contrary in fact is true.

The document itself provides for the ONLY way it is supposed to be subject to alteration: amendment.

The bogus claim that the Constitution is a "living breathing document" is nothing more and nothing less than a transparent way to evade such restrictions as it imposes which liberals dislike. They tend to dislike any checks on their ability to "reign." This is why (despite saying things to the contrary) liberals tend to oppose personal freedom in favor of State authority in so many varied areas of our lives.

The Constitution, PROPERLY understood (not that nonsensical "living breathing" crap), stands in their way. It frustrates their purposes and their agenda. It is for this reason that they lie and make the deliberately and obviously false claim that it is a "living breathing" document.

It most certainly is not.

 

[Lonestar_logic]

A recent Rasmussen poll, which asked 1,000 adults the following question:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

64% of respondents chose “what’s written in the Constitution".

I myself beleive in strict constructionism.

 

[Lonestar_logic]

I find it interesting that traditionally religious types, Conservatives and such, are in more favor of a literal interpretation of the Constitution.

However, I am also in favor of a literal interpretation of the Consititution, strangely enough, I just have a different interpretation of what it "literally" says.

For instance, and what probably led directly to this thread, when I see the term "Provide for the General Welfare" I believe it means, literally, just that. Provide for the general welfare.

I happen to think that Health Care is included in the category of General Welfare, just like Machine Guns are included in the category "Provide for the Common Defense".

That is a literal interpretation, just not one that some people happen to agree with.

Now, the bible, on the other hand, is very open to non-literal interpretation, IMO.

It doesn't say "Provide for the General Welfare". It say "promote the general welfare".

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Constitution of the United States

 

[veritas]

I find it interesting that traditionally religious types, Conservatives and such, are in more favor of a literal interpretation of the Constitution.

However, I am also in favor of a literal interpretation of the Consititution, strangely enough, I just have a different interpretation of what it "literally" says.

For instance, and what probably led directly to this thread, when I see the term "Provide for the General Welfare" I believe it means, literally, just that. Provide for the general welfare.

I happen to think that Health Care is included in the category of General Welfare, just like Machine Guns are included in the category "Provide for the Common Defense".

That is a literal interpretation, just not one that some people happen to agree with.

Now, the bible, on the other hand, is very open to non-literal interpretation, IMO.

The constitution does not say provide for the general welfare. It says PROMOTE the general welfare.

Since you take it literally you must now change your premise which you based that opinion on as promote does not mean provide.

Some light reading http://www.usconstitution.net/const.txt

We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.

As you see they do use th word provide, but it is for the common defence (IE a military, the second ammendment).
With the talk about general welfare their role, in the constitution, is to be a cheerleader but not a player.

Wrong. Welfare means resources and safety and the ability to continue and maintain. It doesn't just speak to people's welfare. This is a sovereign they are talking about. It has land mass and borders and natural assets all to be used to maintain an advantage so that it can endure. We defend it, we farm it , we live on it. We add to it. We build on it.

You're getting the Declaration mixed in with your Constitution.