What's your brand of constitutional interpretation?

[JakeStarkey]

What, guys? You afraid to mention Chief Justice himself "Mr. Judicial Review" John Marshall?

Some of Marshall's portraits resemble Regis Philbin.

American Portraits / Hubbard, William James. John Marshall By C. 1832.jpg

 

[JakeStarkey]

My guides to the Constitution are A. Hamilton and J. Marshall, and my poster boy for it in action is Abraham Lincoln.

All of whom ignored the Constitution, and none more so than Lincoln.

Praise the heavens that is so.

 

[Kevin_Kennedy]

My guides to the Constitution are A. Hamilton and J. Marshall, and my poster boy for it in action is Abraham Lincoln.

All of whom ignored the Constitution, and none more so than Lincoln.

Praise the heavens that is so.

Yes, praise the heavens that Lincoln imprisoned political dissenters, shut down opposition newspapers, suspended habeas corpus, deported a U.S. Congressman out of the country, and allowed his troops to utterly destroy the south.

 

[JakeStarkey]

Why did Lincoln do that? Because the Constitution is not a suicide pact for national destruction.

Now, come on, Kevin, he told the South that war would only come if they started it. He warned them, they did it, then he murdered the South.

I bet you, CrusaderFrank, Elvis, divecon, etc., are thrilled that Obama is not as ruthless as Lincoln.

Or is he? Only the far right loonies will know.

 

[Kevin_Kennedy]

Why did Lincoln do that? Because the Constitution is not a suicide pact for national destruction.

Now, come on, Kevin, he told the South that war would only come if they started it. He warned them, they did it, then he murdered the South.

I bet you, CrusaderFrank, Elvis, divecon, etc., are thrilled that Obama is not as ruthless as Lincoln.

Or is he? Only the far right loonies will know.

There was no national destruction, and you shouldn't ignore the Constitution while proclaiming to "save" the nation founded by the Constitution.

 

[Cecilie1200]

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

A "living, breathing document"? Funny, I don't believe I've ever seen a document breathe, much less live. Where does it keep its lungs, one wonders?

 

[BasicGreatGuy]

Why did Lincoln do that? Because the Constitution is not a suicide pact for national destruction.

Now, come on, Kevin, he told the South that war would only come if they started it. He warned them, they did it, then he murdered the South.

I bet you, CrusaderFrank, Elvis, divecon, etc., are thrilled that Obama is not as ruthless as Lincoln.

Or is he? Only the far right loonies will know.

Is that code for sometimes it is necessary to trample the Constitution, in order to save the Republic?

 

[Cecilie1200]

What's funny?

The Living Constitution idea is kind of funny to me. I mean I get that y'all think the past is different than the future, but there's a method for amending things over time that doesn't require judicial activism.

You used a loaded term. "Judicial activism" is the term used by opponents of whatever an interpretation happens to be. As such it's devoid of real meaning and best not used in any serious discussion. Fine for partisan rants though.

The fact that some people misuse the phrase doesn't negate the fact that it has a specific definition, and airily dismissing it as "devoid of real meaning" is just another way of saying, "I want to make things up as I go along, and I know it's indefensible, so I'll just pretend I didn't hear you."

 

[Cecilie1200]

Fair enough. It's loaded to be sure.

But Kevin Kennedy sums it up well in his post - the living constitutional approach is far too fluid for me. I'd rather interpretation not change with the times. I'd rather changing values be reflected in words.

What, you mean actually let the people who live under the laws decide what changes are necessary, instead of having them dictated by omniscient, benevolent dictators in robes? The horror!

 

[Cecilie1200]

Fair enough. It's loaded to be sure.

But Kevin Kennedy sums it up well in his post - the living constitutional approach is far too fluid for me. I'd rather interpretation not change with the times. I'd rather changing values be reflected in words.

I'm not suggesting any written constitution should be a chameleon, but it should remain useful rather than become merely a museum piece.

How "useful" is a document people simply ignore the wording of entirely in favor of what they WISH it said? Why even bother having the sucker?

 

[Diuretic]

What's funny?

The Living Constitution idea is kind of funny to me. I mean I get that y'all think the past is different than the future, but there's a method for amending things over time that doesn't require judicial activism.

You used a loaded term. "Judicial activism" is the term used by opponents of whatever an interpretation happens to be. As such it's devoid of real meaning and best not used in any serious discussion. Fine for partisan rants though.

The fact that some people misuse the phrase doesn't negate the fact that it has a specific definition, and airily dismissing it as "devoid of real meaning" is just another way of saying, "I want to make things up as I go along, and I know it's indefensible, so I'll just pretend I didn't hear you."

The problem with the idea of "judicial activism" is that it is devoid of meaning. There can be no "misuse" of a phrase that has no meaning in the first place.

 

[Liability]

Why did Lincoln do that? Because the Constitution is not a suicide pact for national destruction.

Now, come on, Kevin, he told the South that war would only come if they started it. He warned them, they did it, then he murdered the South.

I bet you, CrusaderFrank, Elvis, divecon, etc., are thrilled that Obama is not as ruthless as Lincoln.

Or is he? Only the far right loonies will know.

Is that code for sometimes it is necessary to trample the Constitution, in order to save the Republic?

I am no fan of JakeStarkey, but I think the reference was probably an allusion to some old Court dictum that maintained that the Constitution is not a suicide pact.

Let's stipulate that Abe did violate the Constitution.

It is a bad thing to violate the Constitution. On the other hand, had he not done so, that would have been the end of the United State of America.

So, at least in that instance, it was the violation of the Constitution to save the Republic that permitted both the Repbulic and the Constitutional form of government to continue.

Noting it is not the same as applauding it. But denying it doesn't really serve much purpose, either.

 

[Diuretic]

Fair enough. It's loaded to be sure.

But Kevin Kennedy sums it up well in his post - the living constitutional approach is far too fluid for me. I'd rather interpretation not change with the times. I'd rather changing values be reflected in words.

I'm not suggesting any written constitution should be a chameleon, but it should remain useful rather than become merely a museum piece.

How "useful" is a document people simply ignore the wording of entirely in favor of what they WISH it said? Why even bother having the sucker?

That would be entirely useless if it were the case. It isn't the case so your point is irrelevant.

 

[Cecilie1200]

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.

So basically, you read the Constitution the way you read the Bible: cherrypick it for the phrases that you think support what you want to do, ignore the rest, and reading for context is apparently something the school taught while you were out smoking behind the gym.

 

[Liability]

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.

What a phrase literally means is not properly subject to your spin.

YOU merely believe (incorrectly as it turns out) that the phrase "General Welfare" has some meaning different today than what it was intended to convey at the time of the Framers.

It doesn't.

If you cared about literal meaning, you'd inquire as to what the phrase meant AS UNDERSTOOD by the people who crafted the Constitution.

You would do better if you looked to what Madison had to say about it, for example.

Madison on the Meaning of the "General Welfare," the "Purpose" of Enumerated Powers, and the "Definition" of Constitutional Government -- Sorenson 22 (2): 109 -- Publius: The Journal of Federalism

 

[Kevin_Kennedy]

Why did Lincoln do that? Because the Constitution is not a suicide pact for national destruction.

Now, come on, Kevin, he told the South that war would only come if they started it. He warned them, they did it, then he murdered the South.

I bet you, CrusaderFrank, Elvis, divecon, etc., are thrilled that Obama is not as ruthless as Lincoln.

Or is he? Only the far right loonies will know.

Is that code for sometimes it is necessary to trample the Constitution, in order to save the Republic?

I am no fane of JakeStarkey, but I think the reference was probably an allusion to some old Court dictum that maintained that the Constitution is not a suicide pact.

Let's stipulate that Abe did violate the Constitution.

It is a bad thing to violate the Constitution. On the other hand, had he not done so, that would have been the end of the United State of America.

So, at least in that instance, it was the violation of the Constitution to save the Republic that permitted both the Repbulic and the Constitutional form of government to continue.

Noting it is not the same as applauding it. But denying it doesn't really serve much purpose, either.

No, it wouldn't have been the end of the United States. The Confederate States wanted to form their own government, not take over Washington, D.C.

 

[BasicGreatGuy]

Why did Lincoln do that? Because the Constitution is not a suicide pact for national destruction.

Now, come on, Kevin, he told the South that war would only come if they started it. He warned them, they did it, then he murdered the South.

I bet you, CrusaderFrank, Elvis, divecon, etc., are thrilled that Obama is not as ruthless as Lincoln.

Or is he? Only the far right loonies will know.

Is that code for sometimes it is necessary to trample the Constitution, in order to save the Republic?

I am no fane of JakeStarkey, but I think the reference was probably an allusion to some old Court dictum that maintained that the Constitution is not a suicide pact.

Let's stipulate that Abe did violate the Constitution.

It is a bad thing to violate the Constitution. On the other hand, had he not done so, that would have been the end of the United State of America.

So, at least in that instance, it was the violation of the Constitution to save the Republic that permitted both the Repbulic and the Constitutional form of government to continue.

Noting it is not the same as applauding it. But denying it doesn't really serve much purpose, either.

Valid point.

We could get into the "what if" scenario with the War between the States. I don't see that as necessarily productive though.

I find the sentiment Jake used as being one that is a cop-out and a ruse for activism.

 

[JakeStarkey]

Is that code for sometimes it is necessary to trample the Constitution, in order to save the Republic?

I am no fane of JakeStarkey, but I think the reference was probably an allusion to some old Court dictum that maintained that the Constitution is not a suicide pact.

Let's stipulate that Abe did violate the Constitution.

It is a bad thing to violate the Constitution. On the other hand, had he not done so, that would have been the end of the United State of America.

So, at least in that instance, it was the violation of the Constitution to save the Republic that permitted both the Repbulic and the Constitutional form of government to continue.

Noting it is not the same as applauding it. But denying it doesn't really serve much purpose, either.

No, it wouldn't have been the end of the United States. The Confederate States wanted to form their own government, not take over Washington, D.C.

They wanted to continue the imperfections that compromise in 1787 had inflicted on America, slavery being the main problem.

 

[Liability]

Is that code for sometimes it is necessary to trample the Constitution, in order to save the Republic?

I am no fane of JakeStarkey, but I think the reference was probably an allusion to some old Court dictum that maintained that the Constitution is not a suicide pact.

Let's stipulate that Abe did violate the Constitution.

It is a bad thing to violate the Constitution. On the other hand, had he not done so, that would have been the end of the United State of America.

So, at least in that instance, it was the violation of the Constitution to save the Republic that permitted both the Repbulic and the Constitutional form of government to continue.

Noting it is not the same as applauding it. But denying it doesn't really serve much purpose, either.

No, it wouldn't have been the end of the United States. The Confederate States wanted to form their own government, not take over Washington, D.C.

We know what the Confederacy wanted to do. That's not the question.

It would have been the end of the United States because there would then have been precedent for simply terminating the agreement (easily and at whim) that formed ANY kind of "Union." We probably would have reverted back to some weak little loosely associated confederacy of our own and we knew from experience that didn't work too well. We in efffect would not be a Nation anymore, but a hodgepodge of sovereign states akin to the mess known as Europe.

 

[JakeStarkey]

All of you go read Article III again of the Constitution. All of you all go read the thirteen state constitutions of 1787. Come back and tell me what the founders that of judicial review.

You guy truly are uninformed.