What's your brand of constitutional interpretation?

[Vanquish]

I had written out a fairly concise list of choices with definitions when I realized that the folks here are smarter than your average bear and it was unnecessary.

Personally, I'm a textualist. If the legislators can't reduce to words what they mean to convey, they've written a bad law.

Im perfectly willing to make several concessions about this.

1. I will admit that almost every law requires some bit of interpretation. But the words should still control.

2. I will admit that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. But this is the role of the judiciary.

3. I will admit that words are symbols for concepts that shift in meaning over time. But the very concept of stare decisis should help us keep meanings as absolute as they can be. There's a recourse for changing what the law is because it's outdated. Not interpretation - legislation!

But the whole point of writing something down is to hold people to what is written. I'd love to see more hermeneutics be brought into the legal realm, if the product is focus, not chaos.

So tell me!

 

[nodoginnafight]

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

 

[JakeStarkey]

The document is organic, adapting as any instrument for humanity to humanity's needs. The primacy of the legislature, whenever and wherever possible, should be governing, but when the legislature ignores the Constitution or the document was in error in the first place (slavery), then the Supreme Court and Article III's "original jurisdiction" trump.

 

[Vanquish]

So you're a Living Constitutionalist. Interesting. Do you hold this view for pragmatic reasons, reasons of intent, or both?

 

[Ringel05]

I had written out a fairly concise list of choices with definitions when I realized that the folks here are smarter than your average bear and it was unnecessary.

Personally, I'm a textualist. If the legislators can't reduce to words what they mean to convey, they've written a bad law.

Im perfectly willing to make several concessions about this.

1. I will admit that almost every law requires some bit of interpretation. But the words should still control.

2. I will admit that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. But this is the role of the judiciary.

3. I will admit that words are symbols for concepts that shift in meaning over time. But the very concept of stare decisis should help us keep meanings as absolute as they can be. There's a recourse for changing what the law is because it's outdated. Not interpretation - legislation!

But the whole point of writing something down is to hold people to what is written. I'd love to see more hermeneutics be brought into the legal realm, if the product is focus, not chaos.

So tell me!

Number 3

 

[Vanquish]

I had written out a fairly concise list of choices with definitions when I realized that the folks here are smarter than your average bear and it was unnecessary.

Personally, I'm a textualist. If the legislators can't reduce to words what they mean to convey, they've written a bad law.

Im perfectly willing to make several concessions about this.

1. I will admit that almost every law requires some bit of interpretation. But the words should still control.

2. I will admit that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. But this is the role of the judiciary.

3. I will admit that words are symbols for concepts that shift in meaning over time. But the very concept of stare decisis should help us keep meanings as absolute as they can be. There's a recourse for changing what the law is because it's outdated. Not interpretation - legislation!

But the whole point of writing something down is to hold people to what is written. I'd love to see more hermeneutics be brought into the legal realm, if the product is focus, not chaos.

So tell me!

Number 3

I'm sorry if I was unclear, Ringel. Those aren't choices...those are my concessions to those who disagree with my Textualist approach.

 

[Ringel05]

I had written out a fairly concise list of choices with definitions when I realized that the folks here are smarter than your average bear and it was unnecessary.

Personally, I'm a textualist. If the legislators can't reduce to words what they mean to convey, they've written a bad law.

Im perfectly willing to make several concessions about this.

1. I will admit that almost every law requires some bit of interpretation. But the words should still control.

2. I will admit that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. But this is the role of the judiciary.

3. I will admit that words are symbols for concepts that shift in meaning over time. But the very concept of stare decisis should help us keep meanings as absolute as they can be. There's a recourse for changing what the law is because it's outdated. Not interpretation - legislation!

But the whole point of writing something down is to hold people to what is written. I'd love to see more hermeneutics be brought into the legal realm, if the product is focus, not chaos.

So tell me!

Number 3

I'm sorry if I was unclear, Ringel. Those aren't choices...those are my concessions to those who disagree with my Textualist approach.

Number three is the only way I see as the constitutional process lending itself to numbers one and two, i.e. I agree with you.

 

[nodoginnafight]

This is pretty funny

 

[Vanquish]

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.

 

[Kevin_Kennedy]

A "living Constitution" makes the Constitution pointless because it makes the government more powerful than the Constitution. They would simply be able to do whatever they want and attribute it to changing with the times. The fact that we have an amendment process proves that the Constitution was never meant to be a "living" document.

 

[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.

 

[Diuretic]

A "living Constitution" makes the Constitution pointless because it makes the government more powerful than the Constitution. They would simply be able to do whatever they want and attribute it to changing with the times. The fact that we have an amendment process proves that the Constitution was never meant to be a "living" document.

The fact that it can be amended is possibly that the framers of the constitution knew that it would have to be altered to reflect contemporary society. I'd suggest they wanted it to remain relevant and knew that building on its basic principles, without departing radically, was the best way of its owners keeping it relevant.

 

[Kevin_Kennedy]

A "living Constitution" makes the Constitution pointless because it makes the government more powerful than the Constitution. They would simply be able to do whatever they want and attribute it to changing with the times. The fact that we have an amendment process proves that the Constitution was never meant to be a "living" document.

The fact that it can be amended is possibly that the framers of the constitution knew that it would have to be altered to reflect contemporary society. I'd suggest they wanted it to remain relevant and knew that building on its basic principles, without departing radically, was the best way of its owners keeping it relevant.

However, you have to actually amend the Constitution if you want to change it. Our government no longer believes it has to amend the Constitution, and that's a result of the so-called "living" Constitution theory.

 

[PLYMCO_PILGRIM]

I had written out a fairly concise list of choices with definitions when I realized that the folks here are smarter than your average bear and it was unnecessary.

Personally, I'm a textualist. If the legislators can't reduce to words what they mean to convey, they've written a bad law.

Im perfectly willing to make several concessions about this.

1. I will admit that almost every law requires some bit of interpretation. But the words should still control.

2. I will admit that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. But this is the role of the judiciary.

3. I will admit that words are symbols for concepts that shift in meaning over time. But the very concept of stare decisis should help us keep meanings as absolute as they can be. There's a recourse for changing what the law is because it's outdated. Not interpretation - legislation!

But the whole point of writing something down is to hold people to what is written. I'd love to see more hermeneutics be brought into the legal realm, if the product is focus, not chaos.

So tell me!

I believe in the constitution as it was written. The basic tennants and values in it are not to be changed.

I do not subscribe to the "constitution is a living document" ideology.

 

[Vanquish]

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.

 

[Vanquish]

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.

 

[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.

 

[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.

 

[goldcatt]

Striaght up pragmatist here.

 

[Vanquish]

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.