The Court has too much unchecked power, but I do take great comfort in knowing that we will have a long conservative era where now young children will be able to live out most of their formative years without being subjected to liberal jurisprudence. The Trump legacy is now indelibly marked on a generation. The Republican blockade of Obama's attempt to select a justice is now appearing all the more brilliant and all the more important.
Reply to Maw My post was just a kind reminder that the extraordinary moments in the political cycle that are viewed as heartbreaking by one side are viewed gleefully by the other.
The Court has too much unchecked power, but I do take great comfort in knowing that we will have a long conservative era where now young children will be able to live out most of their formative years without being subjected to liberal jurisprudence. The Trump legacy is now indelibly marked on a generation. The Republican blockade of Obama's attempt to select a justice is now appearing all the more brilliant and all the more important.
Reply to Hanover Ah yes wonderful conservative jurisprudence. It's also not much a "political cycle" when the Supreme Court has been majority conservative for 40 years.
Reply to ArguingWAristotleTiff Tiff, you have two teenage sons, correct? I imagine one day they may have girlfriends who may one day become your daughters-in-law and heaven forbid this, but the new conservative court may very well decide within the next 20 years to overturn Roe v. Wade, and either allow states to determine abortion rights or Federally ban abortion nation-wide, and again, heaven forbid, but one day your daughters-in-law may be told by their doctor that they are carrying your sons stillborn, or a child with a serious terminal condition, that they must carry to term because abortion will most assuredly be illegal in Arizona and I know you would love your hypothetical daughters-in-law because how could you not love the women whom your sons married, and I know you would hate to see them in that pain that could have been avoided if only Roe v. Wade were not overturned by a conservative court that you are now gleefully celebrating, and if this hypothetical scenario does not happen to you in particular, you can be very much assured that it can happen and will happen to some other woman should Roe v. Wade be overturned (by six men, of course), which again, is a very real possibility.
With a decidedly conservative court, we can be assured the labor unions will continue to be beaten back (as most recently demonstrated by the recent blow to public-sector unions), hurting stronger wage growth and stronger worker rights, and we can be assured that LGBT rights will not progress any further, and could be scaled back in some cases (although a majority of Americans now support same-sex marriage, so the court may be more hesitant to chip away at gay rights).
The outrageous Citizen's United decision will not be overturned, and a deluge of money will be continue to be poured in politics by wealthy individuals for their own self-interested purposes, so be assured that your voice will matter less and less in the political realm as it's overshadowed by a wave of cash, but I imagine, Tiff, that you'll be swayed by the influx of deceitful political campaigns paid for by wealthy individuals who care only about their bottom-line.
I could get into gerry-mandering and voting rights, or gun control, etc. but it's all just too much now.
What's wrong with discussing loyalty? Isn't loyalty an important quality in your friends, in people you associate with, people you do business with, etc.?
As @Michael stated, a member of the Supreme Court's loyalty, as a member of the judicial branch, ought to be only towards the United States. Not the office of the Presidency.
Where does your copy of the Constitution speak of the right to abortion?
Why should I be required to fund a union that sends part of that money to political candidates I don't support?
Why does the government have the right to limit the way free speech is funded?
Should a Justice worry about the outcome of the decisions when he or she decides, or should he or she just decide based upon the Constitution says? The word "Constitutional" has been twisted by the left to mean "moral," and then the debate centers on such questions as "how would you like it if a woman were forced to have a baby she didn't want" and the like. Let us assume it would be horribly immoral to force such a pregnancy to term, granting all of your points as valid, how does that make it unconstitutional unless you really just mean immoral? I don't hear you arguing vehemently that the penumbra of the Bills of Rights demands the legality of abortion (The Roe v. Wade reasoning), largely because it's preposterous. You see no problem with slapping down a rule just because you think it's right even though the Constitution says nothing about it?
And let us assume you have some other far reaching way of interpreting the Constitution, you can't see any legitimacy in someone else disagreeing with that approach and actually insisting upon looking at the document?
Reply to Agustino To clarify, I mean the person holding the Presidency. No, a member of the Supreme Court should not swear loyalty to the President.
Reply to ArguingWAristotleTiff So then I'm not quite sure where your gleeful reaction to a conservative court is coming from. It seems highly misplaced.
Reply to Hanover Conflating the Constitution with morality is most assuredly a right-wing position, brought on primarily through the vacuous 'Originalist' interpretation on the Constitution which would shackle this Nation to the 18th century.
Should a Justice worry about the outcome of the decisions when he or she decides, or should he or she just decide based upon the Constitution says?
A little of both. The US Constitution is our touchstone. Its the oldest constitution in the world because of the flexibility we allow in interpretation.
I don't hear you arguing vehemently that the penumbra of the Bills of Rights demands the legality of abortion (The Roe v. Wade reasoning), largely because it's preposterous. You see no problem with slapping down a rule just because you think it's right even though the Constitution says nothing about it?
The Constitution protects a person's liberty. Is it preposterous to rule (as the Supreme Court did in Roe vs Wade and Planned Parenthood v. Casey) that the choice to have an abortion is a liberty, and if so why? It's not as if the Constitution actually provides an exhaustive list of what it means by the term.
Conflating the Constitution with morality is most assuredly a right-wing position, brought on primarily through the vacuous 'Originalist' interpretation on the Constitution which would shackle this Nation to the 18th century.
I was saying the left conflates the Constitution with liberty, not concerning themselves with the actual words of the document, but instead it's generalized meaning. If a statute were passed in the 18th century, wouldn't we be bound by the words they used at the time? It's not like we can't change the words if the times have changed, but if we don't, then it sure seems we're always going to be stuck with what we said when we said it.
A little of both. The US Constitution is our touchstone. Its the oldest constitution in the world because of the flexibility we allow in interpretation.
If we get rigid about it we'll lose it.
I don't know what it means to lose the Constitution, as if one day we'll just stop reading it. A real way for a document to lose meaning is to make it mean whatever you want it to mean. If you're not going to really pay attention to the words, but you're going to just make if do whatever you can't get the legislature to do for you, then the words become meaningless.
The Constitution protects a person's liberty. Is it preposterous to rule (as the Supreme Court did in Roe vs Wade and Planned Parenthood v. Casey) that the choice to have an abortion is a liberty, and if so why? It's not as if the Constitution actually provides an exhaustive list of what it means by the term
If the list of liberties did include abortion, why was it illegal in every state upon ratification of the 14th Amendment, which uses the term "liberty" you're relying upon? When the 13th Amendment was ratified, the slaves actually became free. Why didn't abortion stop upon passage of the 14th? Likely because it didn't mean that?
And to be clear, the right to liberty that was found in the 14th Amendment isn't some generalized notion of the right to abortion, but it is a complex system of rights divided by trimester, where one has lesser rights to abort each trimester and the state has greater rights to regulate as each 3 month period elapses. That is a bit preposterous. In fact, it sure sounds like judicial legislation. I would suspect that if pre Roe v. Wade we put 100 legal scholars in separate rooms and asked them to determine if there were a Constitutional right to abortion and, if so, to set it out, none would have come up with the reasoning and three trimester system found in Roe v. Wade.
A real way for a document to lose meaning is to make it mean whatever you want it to mean. If you're not going to really pay attention to the words, but you're going to just make if do whatever you can't get the legislature to do for you, then the words become meaningless.
And do you think that has happened to the US Constitution?
If the list of liberties did include abortion, why was it illegal in every state upon ratification of the 14th Amendment, which uses the term "liberty" you're relying upon? When the 13th Amendment was ratified, the slaves actually became free. Why didn't abortion stop upon passage of the 14th? Likely because it didn't mean that?
Because the 13th explicitly mentions slavery, whereas the 5th and 14th don’t explicitly mention abortion, and so it requires a case to be brought to the Supreme Court to argue that such-and-such a thing is a liberty and so protected, which eventually happened. I’m sure the due process clause has been used to strike down other laws that forbade liberties that also aren’t explicitly listed in the Constitution.
It’s no different to using the First Amendment to protect Citizens United. There’s no mention of campaign donations in the Bill of Rights yet the court ruled that they count as a kind of speech.
Reply to frank I think that's the road we're going down. When a document means anything you want it to mean, it really means nothing at all. I also have trust in the democratic process and don't think we need judges steering our progress based upon what really amounts to matters of their conscience.
And to be clear, the right to liberty that was found in the 14th Amendment isn't some generalized notion of the right to abortion, but it is a complex system of rights divided by trimester, where one has lesser rights to abort each trimester and the state has greater rights to regulate as each 3 month period elapses. That is a bit preposterous. In fact, it sure sounds like judicial legislation. I would suspect that if pre Roe v. Wade we put 100 legal scholars in separate rooms and asked them to determine if there were a Constitutional right to abortion and, if so, to set it out, none would have come up with the reasoning and three trimester system found in Roe v. Wade.
Hence the due process. Liberties can be restricted if doing so serves some greater good, and the case was made that the closer to viability the more reason there is to restrict this liberty.
Although your argument here is less a case for abortion not being a liberty and more a case against allowing abortion to be restricted even in the latest stages.
I think that's the road we're going down. When a document means anything you want it to mean, it really means nothing at all. I also have trust in the democratic process and don't think we need judges steering our progress based upon what really amounts to matters of their conscience.
The road we're going down? If we are in fact on that road, then give me an example. What part of the constitution has become meaningless due to loose interpretation?
Reply to Michael We may have rights that aren't specified in the constitution. A lot of states will uphold the right to abortion even if Roe v Wade is overturned. The hardship will be on poor and young women who live in anti-abortion states.
Hence the due process. Liberties can be restricted if doing so serves some greater good, and the case was made that the closer to viability the more reason there is to restrict this liberty.
This is confusing. There are two types of due process: procedural and substantive. Procedural due process requires, at a minimum, notice and hearing before you can be deprived of something you were otherwise entitled to. For instance, you have the right to a fair proceeding before they send you to jail or fine you or take your property. Substantive due process simply describes where the legislative power ends and there is a right you are entitled to. It is subject to much debate. You seem to be arguing that the trimester system is a type of procedural due process, but it's not. I see what you're saying, that the trimester system is a way of making abortions fair, but really the trimester system is a description of the actual right that was extrapolated somehow from the Constitution, describing where the State's interest in regulating abortion begins and ends. Quoting Michael
Although your argument here is less a case for abortion not being a liberty and more a case against allowing abortion to be restricted even in the latest stages.
My argument is entirely one of whether abortion is a right set out in the Constitution. I am pro-choice and believe a better society is one that allows abortion, having no real objection to the trimester framework. I just submit it's a legislative function to make such laws and it's disingenuous, intellectually dishonest, and an over-reach by a non-democratic body to claim they found the right to abortion in our highest, most controlling document that trumps (not Donald) everything else.
You seem to be arguing that the trimester system is a type of procedural due process, but it's not
I meant substantive due process. Despite the right to liberty, imprisonment isn't unconstitutional. Despite the right to free speech, criminalizing perjury is allowed. Despite the right to bear arms, some types of weapons are forbidden. Nowhere (as far as I know) does the Constitution actually specify the limits of (at least some of) these rights. It is for the Supreme Court to decide, which it does, and that's entirely appropriate. I don't see why placing restrictions on abortion is any more an overreach than the aforementioned restrictions. Or would you argue that the Supreme Court is/would be wrong in those cases too?
My argument is entirely one of whether abortion is a right set out in the Constitution.
Liberty is a right and the Supreme Court decided that abortion counts as a liberty, just as free speech is a right and the Supreme Court decided that campaign donations count as speech. They have to make these kinds of decisions because the Constitution didn't come with a glossary.
The road we're going down? If we are in fact on that road, then give me an example. What part of the constitution has become meaningless due to loose interpretation?
And this responds to @Michael's post as well regarding substantive due process.
A quick history of this. The 14th amendment was passed following the Civil War in 1866 that stated, "nor shall any State deprive any person of life, liberty, or property, without due process of law."
In historical context it appears to mean that you can't take people's stuff or deprive them of basic freedom without first giving them a fair trial and opportunity to be heard. In fact, that's how it was interpreted initially and it was referred to as the right to procedural due process. The Amendment was then used to make some of the Bill of Rights applicable against the states (but not all). That is, it was asserted that some of the basic liberties set forth in the Bill of Rights were instances of "liberty" that a state could not deprive you of. A couple of notable examples where a state can deprive you of a right listed in the Bill of Rights are the right to a trial by jury in a civil suit and the right to a grand jury (the federal government cannot deprive you of such a right in a federal proceeding).
The idea of making sure all people receive fair trials makes sense in the historical context of blacks having just been emancipated and the idea of making the federal constitution applicable to the states makes sense since in the historical context of the states in rebellion having just been brought back into the union.
So far so good. The issue is that if the Court has recognized that certain enumerated rights are applicable to the states, it can now start deciding which unenumerated rights will become applicable to the states because the 9th Amendment says that there are some rights not enumerated. And this is where this concept of substantive due process derives (as opposed to procedural due process), which is that we can now look for other unenumerated liberties and demand that the state protect them.
Fast forward to 1905 with the Lochner case, a case striking down economic regulations that were intended to protect workers by limiting how long they could work in a given week. That case said it was unconstitutional to regulate how a worker could decide how he wished to freely contract to labor. There were additional Supreme Court cases that followed that similarly protected economic substantive due process, but in 1937 that era ended with a case striking down Lochner and making clear that the Court would allow employment regulation and it would exercise great caution in locating new unenumerated rights.
Fast forward to 1965, which is when the Court found a rejuvenated interest in finding unenumerated rights, changing course from the era of caution. Moving through the 60s and 70s, it was determined that some of the unenumerated rights that we had were the right to use contraception, the right for interracial couples to marry, the right to abortion, and the right to engage in sodomy (that was in the 90s) It was found however that we don't have the right to state assisted suicide.
In the 1960s, it was decided that there would be no specific formula for deciphering these rights, but the Court was just to make a case by case assessment. In 1997, a case indicated that the Court ought to recognize those unenumerated rights "deeply rooted in the in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” However, this formula was not used in 2015 when it was determined that gay marriage was an unenumerated right.
So, to answer your question: The 14th Amendment has become meaningless due to loose interpretation. The 14th Amendment states a state may not deprive you of contraception, intermarriage, abortion, sodomy, or gay marriage. You may however be deprived of the right to a jury trial in a civil case, the right to a grand jury, the right to contract to labor however you want, and the right to assisted suicide. There is no formula for deciding where these rights come from, but it's left up to the decision of the Justices.
That hardly sounds like they're following rules or laws, but just sort of deciding. And they don't just make generalized holdings like "you have the right to an abortion." They say, "you have the right to an abortion in the first trimester" and they lay out a very specific rule, as if all of that is a sacred right.
I think the rule is very clear, though, in how unenumerated rights are found. You simply look at the prevailing view of the political left and you declare it right and just and you enshrine it in the Constitution. It then becomes a moral statement decreed by their atheistic god or something and it stands forever immovable. I think it's clear that the Court is just looking to public sentiment when it finds these rights and they change with the political climate. That's not interpretation of a document. That's just what a good politician does.
So, to answer your question: The 14th Amendment has become meaningless due to loose interpretation. The 14th Amendment states a state may not deprive you of contraception, intermarriage, abortion, sodomy, or gay marriage. You may however be deprived of the right to a jury trial in a civil case, the right to a grand jury, the right to contract to labor however you want, and the right to assisted suicide. There is no formula for deciding where these rights come from, but it's left up to the decision of the Justices.
That hardly sounds like they're following rules or laws, but just sort of deciding. And they don't just make generalized holdings like "you have the right to an abortion." They say, "you have the right to an abortion in the first trimester" and they lay out a very specific rule, as if all of that is a sacred right.
I think the rule is very clear, though, in how unenumerated rights are found. You simply look at the prevailing view of the political left and you declare it right and just and you enshrine it in the Constitution. It then becomes a moral statement decreed by their atheistic god or something and it stands forever immovable. I think it's clear that the Court is just looking to public sentiment when it finds these rights and they change with the political climate. That's not interpretation of a document. That's just what a good politician does.
The problem, though, is that the Constitution doesn't define "life", "liberty", "property", or "speech", so how can the Supreme Court determine if a law wrongly infringes on these rights? If the Constitution doesn't tell us what these things are, and if it's wrong to infer anything that isn't explicit in the Constitution, then such rights are effectively meaningless.
By necessity the Justices have to look outside the Constitution to determine if something like abortion is a liberty or if something like campaign donations count as speech.
The problem, though, is that the Constitution doesn't define "life", "liberty", "property", or "speech", so how can the Supreme Court determine if a law wrongly infringes on these rights? If the Constitution doesn't tell us what these things are, and if it's wrong to infer anything that isn't explicit in the Constitution, then such rights are effectively meaningless.
The slippery slope of your position is that nothing can be explicit because if we don't know what life, liberty, property, and speech is, we don't know what slavery is either and so maybe they were never emancipated, and maybe we don't know what we're saying to each other right now either.
Anyway, there are variety ways of interpreting words, one of which is to look at how "liberty" was used in 1866 when it was used, and it most clearly did not refer to abortion or sodomy. It's also possible to set up a standard that can be followed, but the Court is reluctant to do that because they want that to change that as well over time. My point here being that they've not defined liberty, they've given us some examples of it.
Why doesn't my right to "liberty" include the right to own a cat? If you can make a legitimate case for why it would be unconstitutional for the state to regulate my right to cat ownership under the 14th Amendment, have you not made the Constitution pretty meaningless? What is the Court's working definition of "liberty" and why does it include abortion but not assisted suicide, sodomy, but not the right to work 70 hours per week?
So, to answer your question: The 14th Amendment has become meaningless due to loose interpretation. The 14th Amendment states a state may not deprive you of contraception, intermarriage, abortion, sodomy, or gay marriage. You may however be deprived of the right to a jury trial in a civil case, the right to a grand jury, the right to contract to labor however you want, and the right to assisted suicide. There is no formula for deciding where these rights come from, but it's left up to the decision of the Justices.
You just did a wonderful job of explaining how we currently understand what the 9th and 14th Amendments mean, so obviously they aren't meaningless. If some familiarity with precedents is required to fully understand the law, that's business as usual.
Thomas Jefferson was asked to rewrite the statues of Virginia after the revolution (it was known that Virginia's law would become the model all the states would follow). Jefferson refused, saying that every word in a law code is the beneficiary of generations of lawyerly wrangling and it would be wrong to curse future lawyers with having to wrangle over a totally new set of words. So Jefferson knew that the meaning of the words continually evolves. Virginia's law still includes the Magna Carta, which most certainly is not interpreted today the way it was in 1215. Would you seriously hold that it should be?
I think the rule is very clear, though, in how unenumerated rights are found. You simply look at the prevailing view of the political left and you declare it right and just and you enshrine it in the Constitution.
Are rightists generally opposed to contraception, intermarriage, abortion, and sodomy? I don't think so. And if they are, Congress can further amend the constitution to clarify and all's well.
Anyway, there are variety ways of interpreting words, one of which is to look at how "liberty" was used in 1866 when it was used, and it most clearly did not refer to abortion or sodomy.
I think this is the wrong way to understand language. You and a slave owner might mean the same thing by “moral” but disagree on which things are moral. So we and the people of 1866 might mean the same thing by “liberty” but disagree on which things are a liberty. The original meaning interpretation of the Constitution requires that we consider what the people who wrote it meant by the term, and presumably it meant what it does now, even if we have a different understanding of which things are covered by that meaning.
You just did a wonderful job of explaining how we currently understand what the 9th and 14th Amendments mean, so obviously they aren't meaningless. If some familiarity with precedents is required to fully understand the law, that's business as usual.
What does "liberty" mean and how is it being used in the various cases I cited? When faced with a novel issue regarding whether something is a substantive right, how do I go about that analysis so that I might expect my conclusion would be consistent with someone else's? If there is not standard to determine what is a substantive right, how can I ever say someone was right or wrong in their conclusion? Quoting frank
Thomas Jefferson was asked to rewrite the statues of Virginia after the revolution (it was known that Virginia's law would become the model all the states would follow). Jefferson refused, saying that every word in a law code is the beneficiary of generations of lawyerly wrangling and it would be wrong to curse future lawyers with having to wrangle over a totally new set of words. So Jefferson knew that the meaning of the words continually evolves
That's not what Jefferson was saying. America inherited its laws from England and part of the common law tradition is that judges interpret the meaning of laws and render binding legal opinions explaining what the laws mean. His point is well taken, that if you write a whole new set of laws, you're going to discard perhaps hundred of years of precedent clarifying the meaning of those laws. This doesn't point to the evolving meaning of words, but actually the opposite, which is that over time the meaning of statutes become more clear and more well defined based upon precedent. Courts reversing themselves and changing the meaning of terms does occur from time to time, but that can be based on all sorts of things and the role of stare decisis is a matter of debate.
I don't really see what Jefferson is saying here is applicable to how judges are to extract meaning from terms. Jefferson's comment relates to the significance of precedent. Our question deals with Constitutional interpretation and what standards you use to determine meaning from words.Quoting frank
Virginia's law still includes the Magna Carta, which most certainly is not interpreted today the way it was in 1215. Would you seriously hold that it should be?
You'll have to give the cite to where the Virginia Code contains excerpts from the Magna Carta translated from its medieval Latin so I can see exactly what you're talking about.. As your Jefferson quote made clear, the US did accept the common law interpretations from the English courts and you can find such references in very old cases. So, yes, if there were a situation that cited a Virginia statute that originated with the Magna Carta and there were ancient court interpretations of those rules, that would be helpful in deriving meaning of the statute. Of course there's over 800 years of additional interpretation that needs to be considered as well.
I think this is the wrong way to understand language. You and a slave owner might mean the same thing by “moral” but disagree on which things are moral. So we and the people of 1866 might mean the same thing by “liberty” but disagree on which things are a liberty. The original meaning interpretation of the Constitution requires that we consider what the people who wrote it meant by the term, and presumably it meant what it does now, even if we have a different understanding of which things are covered by that meaning.
The only way we can possibly ascertain the meaning of a word used in 1866 is by looking to how it was used. And what we know is that liberty did not include the right to abort, to intermarry, to engage in sodomy, and to marry someone of your same gender. I think it's clear that the word "liberty" means something quite different today than when it was written. You seem to be saying that it means the same today as before, but how do you know that if all indications are that they meant something far different.
But let's clarify, what is meant by "liberty," and how would I know if I have a right to cat ownership? My guess is that I don't, largely because it's not a hot-button issue for the left and it doesn't have to do with relationships or sexuality in some way. As far as I can tell, the unenumerated 11th right is the right to marry, to have sex with whoever I want, to have whatever sort of sex with I want, and to discard the remains of that sexual encounter without government interference. Isn't that really what "liberty" really is here? And when I look at the enumerated rights, this 11th right doesn't seem to flow that well with the other rights, like the right to free speech, the right against illegal searches and seizures, the right to counsel, and the right to be free from cruel and unusual punishment. I mean, really, you derived the right to have sodomy by extrapolating from the other amendments?
What does "liberty" mean and how is it being used in the various cases I cited? When faced with a novel issue regarding whether something is a substantive right, how do I go about that analysis so that I might expect my conclusion would be consistent with someone else's? If there is not standard to determine what is a substantive right, how can I ever say someone was right or wrong in their conclusion?
The concept of rights is arguably Rome's greatest gift to us. The original meaning refers us to the ways of nature. For the Romans, right and health were identical. The rights of a citizen (and slaves as well) became known by observation of what is most life-giving to individuals and to society as a whole.
So it would be appropriate in regard to the way we have worked out the role of the Supreme Court to ask if our judges have been doing a good job of identifying what is beneficial to the American society. I'd say they have pretty good track record. And if they fail, as I said, Congress can rectify that.
I think you're grumbling about some democratic principle. I would say a woman has a right to an abortion. I think you agree, but you think it would be better if the whole society continues to suffer because of the inability of congressmen to amend the constitution. I honestly don't understand that attitude.
You'll have to give the cite to where the Virginia Code contains excerpts from the Magna Carta translated from its medieval Latin so I can see exactly what you're talking about..
You're denying that Virginia's statues contain the Magna Carta?
So it would be appropriate in regard to the way we have worked out the role of the Supreme Court to ask if our judges have been doing a good job of identifying what is beneficial to the American society. I'd say they have pretty good track record. And if they fail, as I said, Congress can rectify that.
The democratic check on the Supreme Court is very limited and onerous, requiring Constitutional amendment. If that were your attitude, you wouldn't care who sits on the Court, considering we can just undo it with an amendment.
I think you're grumbling about some democratic principle. I would say a woman has a right to an abortion. I think you agree, but you think it would be better if the whole society continues to suffer because of the inability of congressmen to amend the constitution. I honestly don't understand that attitude.
This is the crux of the entire debate: What is the appropriate role of the Court and how does it affect our democracy? If we are being ruled by 5 justices, we're not an effective democracy. The role of Congress is to consider matters of policy.Quoting frank
You're denying that Virginia's statues contain the Magna Carta?
No. I asked for the cite to it because I couldn't find the specific statute you were alluding to. I trust your statement, but I'd like to see it for academic sake. It'd be interesting to see how their courts have dealt with such ancient references.
The only way we can possibly ascertain the meaning of a word used in 1866 is by looking to how it was used. And what we know is that liberty did not include the right to abort, to intermarry, to engage in sodomy, and to marry someone of your same gender. I think it's clear that the word "liberty" means something quite different today than when it was written. You seem to be saying that it means the same today as before, but how do you know that if all indications are that they meant something far different.
That's like saying that because historical people referred to the mentally ill as being possessed by demons then the meaning of the phrase "possessed by demons" at that time meant "mentally ill". But of course that's wrong. It meant what it means now. They were just wrong to refer to the mentally ill as being possessed by demons. And historical people didn't refer to slavery as being immoral. Does it then follow that the meaning of the word "immoral" has changed, and that slavery isn't immoral (as they meant by the word)? Or is it that the meaning is the same, and they were just wrong to not refer to slavery as immoral?
But let's clarify, what is meant by "liberty," and how would I know if I have a right to cat ownership? My guess is that I don't, largely because it's not a hot-button issue for the left and it doesn't have to do with relationships or sexuality in some way.
I already brought up the example of the Supreme Court ruling in Citizens United v. FEC that campaign donations are a form of free speech, despite the fact that the Constitution never explicitly states that it is. This kind of interpretation of the Constitution isn't exclusive to situations that liberals favour, so I don't know why you're trying to turn this into a partisan issue.
I mean, really, you derived the right to have sodomy by extrapolating from the other amendments?
I'm deriving it from the facts that a) liberty is a right and b) sodomy is a liberty. Don't you do the same for the case of vaginal intercourse between a husband and wife? Or would it be wrong for the Supreme Court to rule against a law that enforced celibacy because the Constitution never states that sex is a right?
The democratic check on the Supreme Court is very limited and onerous, requiring Constitutional amendment. If that were your attitude, you wouldn't care who sits on the Court, considering we can just undo it with an amendment.
I think you must be fully aware that the difficulty in amending the Constitution is the very reason people on both sides of the aisle have appreciated actions of the Court to set straight wrongs. I'm asking out of genuine curiosity. Do you not know that?
This is the crux of the entire debate: What is the appropriate role of the Court and how does it affect our democracy? If we are being ruled by 5 justices, we're not an effective democracy. The role of Congress is to consider matters of policy.
As I said, the effect of the way we've been doing it has been overwhelmingly beneficial. Do you disagree?
No. I asked for the cite to it because I couldn't find the specific statute you were alluding to. I trust your statement, but I'd like to see it for academic sake. It'd be interesting to see how their courts have dealt with such ancient references.
Oh. I either learned that from a book about the revolution or a book about Jefferson. I went through a huge Jefferson phase a few years back. I'll see if I can find it.
That's like saying that because historical people referred to the mentally ill as being possessed by demons then the meaning of the phrase "possessed by demons" at that time meant "mentally ill". But of course that's wrong. It meant what it means now. They were just wrong to refer to the mentally ill as being possessed by demons
This isn't really analogous. We would derive their meaning through use, and mentally ill would refer to those with particular behaviors. Their definition of being possessed by demons is empirically incorrect. If I declare X, Y, and Z "liberties," we can arrive at their underlying definition by analyzing how they use that term, but unfortunately there is no empirical reference for us to determine if their self-proclaimed meaning were correct. Quoting Michael
And historical people didn't refer to slavery as being immoral. Does it then follow that the meaning of the word "immoral" has changed, and that slavery isn't immoral as they meant by the word? Or is it that the meaning is the same, and they were just wrong to not refer to slavery as immoral?
If they offer a definition of "moral" that is at odds with how they're using it, then we can say their stated definition is wrong. If you're equating "liberty" with "moral," I think you're on to something, and my objection is very clear that 5 people don't need to be philosopher kings telling 100s of millions of Americans what is right and wrong. That's what the ballot box is for.Quoting Michael
No, I'm deriving it from the facts that a) liberty is a right and b) sodomy is a liberty.
What is the principle you adhere to that I can use to determine what is a liberty though? Is cat ownership a liberty and why or why not?
What is the principle you adhere to that I can use to determine what is a liberty though? Is cat ownership a liberty and why or why not?
Planned Parenthood v. Casey states that "matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." That seems like a good answer. It likely excludes cat ownership and includes consensual vaginal intercourse between a husband and wife.
... my objection is very clear that 5 people don't need to be philosopher kings telling 100s of millions of Americans what is right and wrong. That's what the ballot box is for.
And when a majority of the population are in favour of mistreating some minority? We just have to accept it? A Supreme Court being able to rule that something not explicitly enumerated as a right in the Constitution is nonetheless implied by something that is is a useful counter to the injustice of a tyranny of the majority.
Mm, that sounds right. I certainly can't think of any (non-religious) principle that would cover regular sexual intercourse and not also cover oral and anal sexual intercourse. It must be a package deal.
Well, we'll see what happens. The Supremes when led by the conservative justices are capable of extremely silly decisions like Citizens United, converting money into speech, and the Hobby Lobby one which sanctified, as it were, the proposition that business corporations may have religious beliefs entitled to constitutional protection, but there's always hope. As to interpretation of the Constitution, I've always felt the "original intent" approach to be a kind of insult to the framers--as if they were too stupid to comprehend that the future might bring profound changes to the United States and its society which could make other factors relevant in the interpretation of the Constitution. Interpretation of the Constitution shouldn't be an "either or" process.
One view: not be any means the only one. I am curious how the country decides which ones to follow do you vote on it or wait for the see saw balance of the SC take its course?
One of the problems with the Constitution is that it is 200+ year old document written to meet the problems that could then be seen in late 18th century governance. While it needed to be, and has been amended, it has not been re-conceived for a much different world that now exists.
We could call a constitutional convention and write a new constitution. After all, it isn't only abortions that are at issue.
Wikipedia:In a line of decisions going as far back as 1891, the Supreme Court recognized a right of privacy and bodily integrity, applying it to activities related to marriage, procreation, family relationships, and child rearing and education. Only in 1965 In Griswold v. Connecticut (1965), the Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy. The court extended that understanding to unmarried persons in 1972.
Maybe the Supremes could decide that, No, actually we think the state does have an interest in suppressing contraception that over-rides the protection of bodily integrity, liberty, and a right to privacy.
Anybody up for attending a constitutional convention in say, 5 years (it would take a while to call and organize one)? My guess is that the descendants of the original social, economic, and political arbitraitors would work VERY HARD to make sure there was a decidedly less permissive cast to any new constitution.
Worse than that. "Original intent" is inaccessible. In documents by committee more obviously so. Scalia's insistence on it, and in general conservative's referencing and relying on it, is simply a crime of ignorance
There are two schools of thought here, the "origanlist" and "revisionist" views. Having a thought is not a crime, ie "thoughtcrime". Judge Scalia is entitled to his opinion. It's no his fault. People should know better than to elect a conservative President.
A thoughtcrime is an Orwellian neologism used to describe an illegal thought. The term was popularized in the dystopian novel Nineteen Eighty-Four by George Orwell, first published in 1949, wherein thoughtcrime is the criminal act of holding unspoken beliefs or doubts that oppose or question Ingsoc, the ruling party. In the book, the government attempts to control not only the speech and actions, but also the thoughts of its subjects.
Worse than that. "Original intent" is inaccessible. In documents by committee more obviously so. Scalia's insistence on it, and in general conservative's referencing and relying on it, is simply a crime of ignorance.
Cats are property, so your right to holding them is protected like all other property.
I'm talking about the right to liberty. The right to cat ownership might be implied by the right to property, but not by the right to liberty (as understood in Planned Parenthood v. Casey), and Hanover was asking about what the right to liberty covers.
We need to place the Constitution in historical perspective to understand intent. Before it was written, Royalty and centralized government controlled all aspects of life. The King, such as in the case of the Kind of England, could impose one set of religious standards on his subjects and use the church and faith to leverage citizens for power and profit. The self serving king was against religious freedom. Instead the church was a propaganda machine for the king.
There was essentially two classes; royal/upper and peasant. Royalty was based on bloodline and not merit, which meant leadership would often not be qualified, and would often make irrational and selfish demands at the expense of the individual, who had no upward path or say.
What was different about America was the ideas of God given rights; individual liberties, above the rules of the king or queen and big government. Among these universal rights were life, liberty and pursuit of happiness. Before the Constitution, royalty and central government could override these to perpetuate its own power. With the Constitution, the role of government was to become much more limited and was supposed to play a support role toward these ends. The middle class is very new and an artifact of the Constitution; upward mobile all the way to president.
The left appears to want the country to regress backwards to the pre-constitution royalty model. During Obama, the middle class shrunk and the peasant class grew. The goals of socialism and communism is a powerful central government, lording over a peasant under class, that pretends to be happy with this. This can be done via regulations which placed a choke hold on companies and jobs that supported the middle class and grow the upper and peasant classes.
The Clintons are like left wing royalty with them being above the law since the law is created to control the peasants. While a powerful centralize government can be used to squash those threaten the status quo.
When the Constitution was written, the only people who could vote were men who owned property. The founding fathers wanted the voters to be rational and self reliant, instead of emotional and dependent and easily manipulated using emotional appeal. The voter needed to have a stake in the fire, was committed to be in it for the long term, and was a contributor and not a dependent.
The rights of life, liberty and pursuit of happiness was based on self reliant people able to pursue their dreams, unhindered by big government. However, it needed to happen in a way where one person's pursuit did not take away from another. That meant working toward your own goals in ways that added value, so your happiness was not a net loss for others.
The founding fathers did not have an income tax, but only user taxes. The exception was during wars. The founding fathers kept money in the pocket of the people who earned it , so they could pursue happiness. The welfare state and big government violates rights if the taxes needed to help pursue happiness, creates a net loss in terms of other people pursuing their happiness. This should done with charity. Charity is a choice that can bring happiness and therefore is not imposed by big government as a deficit to others.
In the case of abortion, the Constitution would allow abortion in terms of the pursuit of happiness. Women get abortions, so they can get back into the game. However, abortion would need to be paid for by the woman who are getting the abortion. The cost cannot be placed on the backs of others through taxes and regulations. Taxes limit the ability of others to pursue their own happiness. It comes down to all our rights being based on self reliance. It cones back to the original voter profile.
As an example, we have the right to bear arms. This right does not mean the tax payers needs to foot the bill for anyone who wishes to own a gun. The gun owner has to buy his own. This is how rights are supposed to work, which is why only men were able to vote at the beginning. Men expected each other to work hard and buy your own. The women and children were used to the men paying. They were not given the right to vote, since this will turn out bad in terms of stealing rights through irrational redistribution schemes.
As to interpretation. As far as I'm aware there's the following possibilities to interpret laws.
1. Grammatical interpretation
2. Law systematic interpretation
3. Legislative historic intent interpretation
4. Historical interpretation (broader than the above, taking social circumstances into account as well)
5. Teleological interpretation
6. Anticipatory interpretation
The tradition in the USA is a strong emphasis on 1 and 3 but there's no good argument as to why this should be the case. Indeed, I find the literal approach in civil law to grossly overestimate lawyers' ability to correctly represent the intent of parties in written form and judges' ability to interpret language that's hardly as exact as they pretend it is.
The tradition in the USA is a strong emphasis on 1 and 3 but there's no good argument as to why this should be the case.
I think a good argument is that you ought allow the will of the democracy be expressed to the greatest extent possible and that you employ the non-democratic hammer of the Constitution only when you have a clear cut instance of democratic overreach. Since the Court has no external check, judicial self-restraint is a required virtue, else you have 5 philosopher kings running the nation. The liberal meltdown is justified now that Trump can create a Court in his image, but that's only because the Court has too much power.
So, I do think a good argument is that an interpretive system be adopted that limits the creative aspect of the Justices, which would mean limiting the interpretation to the words as they were used instead of looking for Constitutional themes and writing new chapters that appear to fit the theme the Justice deciphered.
My guess is that you'd have some affinity for a limited Court, considering the Dutch system is able to navigate without a Constitutional Court at all. The Court as protector against majority tyranny is greatly overstated. The best you can say is that the Court is generally good at reading the direction of the democracy and forcing issues sometimes sooner than some would prefer.
Reply to Hanover Your argument only becomes coherent if there's some way of establishing what the "best" interpretation is. Without that it's just another opinion.
The Netherlands like the USA doesn't have a constitutional court but it's highest court will hear any appeal provided the appeal concerns a question of law and not fact. What it cannot do, is rule on whether other national laws or signed treaties are in accordance with the Dutch constitution or not but it can give its opinion on a specific interpretation of the constitution. So in the Dutch system it's Parliament's prerogative to interpret the constitution in relation to the laws it passes. Technically it is possible that they pass laws contrary to the Dutch constitution without any possibility to litigate against it, except for the fact that a lot of the norms are also codified in international treaties, which they can check national laws against.
That said, you are probably right that the US supreme Court has more power than, for instance, the Dutch Hoge Raad and that this is cause for concern. However, your conclusion that limiting interpretative techniques limits their power is false. It only results in an exercise of that power in a certain way, it doesn't limit it. Even if it would limit it, it isn't a given that the best interpretation is one that limits the power of the judges employing it. We don't know what "best" is here. Your words seem to suggest it is something procedural or constitutive to you (by which I mean it's relationship to other official institutions empowered through the constitution). But what if in the pursuit of meeting such norms a clearly unjust result for either party comes about, which is entirely possible in that case as "best" is then not related to any result? It seems to me that although a judge would do well to realise his or her position within the constitutive framework, he is ultimately tasked with ruling between the parties and not on its own positron in the constitutional order If another interpretative technique results in a just outcome then he has every reason to employ the other techniques. The dictates of public consciousness tempered by the wisdom of tradition decide what is just and therefore "best" and interpretative techniques are tools to reach those ideals. Hardly measurable of course but then judging usually isn't.
VagabondSpectreJuly 02, 2018 at 00:03#1929380 likes
I find the Candian "living tree" (an ongoing interpretative process) metaphor and the American constitutional originalism extremes to both be rather silly. Like everything of interest, the answer is mired in the complex middle.
While Canadian constitutionalism is the story of a small bird aimlessly searching for its real mother (since we [s]fell[/s] leaped out of the royal nest that is), by comparison American constitutional identity and interpretation is very much rigid, stubborn and immobile.
In truth both countries have made continual improvements and amendments as their culture, people, and circumstances change and demand adaptation. In their own way, both nations have engaged in reinterpretation while also maintaining original intentions as normative bases for constitutional sovereignty. Within that process, a conservative mind will laud originalism and see the virtue of a constitution as a binding limit against possible future tyranny, and a progressive or reformist mind will see originalism as the binding us to the tyranny of the past. The "living tree" metaphor is likewise criticized as open to arbitrary changes in future interpretation, and supporters point out that it frees contemporary populations from the arbitrary whims and perhaps poorly chosen values of the past.
In my own view, we do need to respect the original intent of our laws, especially the "highest laws" of the land, and very important laws should not be changeable on mere whim. It should be difficult to alter both the intent and content of constitutional laws and amendments, but it mustn't be too difficult, or impossible, lest we have no democracy to speak of.
When Canada finally gained the right to alter its own constitution acts, it abandoned one aspect of original interpretation and intent in search of its own sovereignty (it abandoned the idea that it needs British consent to change its constitution), and that was a good thing, but it also decided (at least on paper) to keep the original intent of various treaties and agreements between the British monarch and "first nation" indigenous Canadians, which was also a good thing (many people don't know, but Canada wasn't exactly formed through conquest of indigenous groups, but rather through treaties and agreements with them). It took Canada a long time to find it's own constitutional identity (it's still searching in truth), perhaps too long, which might explain why Canadian constitutional law is so infatuated with the living tree metaphor.
America was birthed in righteous rebellion, and they eloquently articulated exactly what they wanted and what their constitutional identity was in words that are still admired to this day ("All men are created equal", "life, liberty, and the pursuit of happiness"; freedom from tyranny), and reinterpretation of these original words and to whom they should apply has definitely been a good thing (applying them to women and non-land-owning-whites). As new social issues and values rise, it is the prerogative of a given democratic public to have a say in what should be changed. Suffrage for non land owning white males is one example, abolition of slavery is another, minority and women's suffrage is another, and state level equal rights amendments are a great example. Gay marriage, abortion and transgender rights are also things we the people should have a say about. We need to think very carefully about what is best for us in the world of today, and these decisions are not easy. Calling for a broad conservation of historically recent values is good in some situations, and bad in others; it depends on the issue and the value.
I watched interviews with Scalia wherein he spoke about original whatever as if it were determinable. It was a lie, and I have to assume he was easily intelligent and well-informed enough to know it. He could easily said his understanding was a guess, and whether correct or not, it still had to go through the filter of present circumstance. He could have said this, but he didn't.
I tend to agree with Scalia or at least, I assumed that Scalia's interpretation was the best one, since it relied on what the constitution meant at the time it was written. I do not think Scalia was lying, he chooses to take his stand. In fact he calls it the 'dead' constitution, and is well aware that he cannot convince the other supreme court judges otherwise, and also of the fact that SC judges are political appointees, making the 'mad swings of the pendulum' (Judge Thomas) possible.
Which type of interpretation best serves the common good it is impossible for me to say, however the 'mad swings of the pendulum', if it is truly random maybe the fairest system of all.
Reply to FreeEmotion I mentioned it for completeness sake but it's not applied very regularly. The anticipatory interpretation takes into account laws that haven't yet been passed but are under consideration with Parliament. Only rarely is the interpretation method leading but it has happened in the Netherlands where rulings referred verbatim to upcoming legislation and set aside existing law. There's obviously a lot to be said about whether that's really a good idea. Where it does work very wel if when current law is unclear or incomplete and the upcoming legislation can fill in those gaps are clarify.
Reply to Benkei
Here in God's favorite country, the goal of the court is to interpret laws consistent with the intent of the law-maker (the legislature). However, if the language of a law is unambiguous, it is to be applied in accordance with its "plain meaning." Consideration is given to sources beyond the language of the law, even legislative history, only if a law is ambiguous (subject to different interpretations by reasonable people). Also in that case, the rules of statutory construction apply. Many of those rules are expressed in solemn and impressive Latin phrases. For example: Expressio Unius Est Exclusio Alterius meaning when one or more things of a class are expressly mentioned others of the same class are excluded.
Who would have thought that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" would be considered ambiguous? This is intended to be ironic, if anyone wants to know.
Of course, there are many more fun things to consider. Is a law to be strictly construed, or is substantial compliance with the law adequate? This can be a consideration regardless of whether a law is unambiguous.
Who would have thought that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" would be considered ambiguous?
Put it down to ignorance then,
The above quote, just to venture my opinion, would, I think, be most naturally be interpreted as a law permanently establishing a Militia. I do not doubt that this idea has been interpreted as the right of every American citizen to carry an M-16 or a weapon of choice. Maybe someone can explain how this came about. There is the Wikipedia article:
In McDonald v. Chicago (2010), the Court clarified its earlier decisions that limited the amendment's impact to a restriction on the federal government, expressly holding that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment against state and local governments.[19] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that its protection is not limited to "only those weapons useful in warfare".[20]
Here is a fascinating speech by David Souter (Souter at Harvard).. His part starts at about 4:00.
I watched judge Souter's speech. What he says is clear: the constitution is to be interpreted, and 'fair reading' approach would not have served America well.
The issue is that the fair reading approach does exist. Is it the best approach? No, but I doubt that it is irrelevant to the discussion. Once can read it and say: this is one approach, this is another, and I believe that the citizens of the United States are better served by a progressive, open- ended approach to interpretation of the constitution.
It is unclear, however, how such an approach can be free of abuse.
A ship steered by the net result of see-sawing bench of liberal and conservative judges cannot but steer a zig zag course to nowhere.
We need to place the Constitution in historical perspective to understand intent.
— wellwisher
This is what does not happen. The best you do is establish what you think is original intent. If you're honest you leave it with that label: what we think they meant. Anything else is dishonest even to the point of being a lie. Ignorance isn't an excuse because people know too much to claim ignorance. They can ignore information, but then we're back to ignorance and lies compounded.
The rest of your post is too skewed and ill-informed to respond to.
Original intent has to go back to before the Constitution was written, so we can understand what the motivation was that led to the writing. You don't start the day it was written, since the thought process and need began years, if not generations, before it was written.
The USA was originally a colony, of a colonial empire, ruled by king and queens. Under a monarchy there were two classes of people; upper and peasant. The King had the divine rights of kings and had control over life, death and taxes. While royal blood line gave advantages but did not always mean competence. History is full of leaders who should not have been, but were, due to royal entitlement. Lack of ability in power can lead to insecurity and paranoia, or to a lecherous lifestyle.
Settling the new territories was not something most people wanted to do. Australia used criminals and prisoners. The Pilgrims came to America for religious freedom. The Royal control over religion was enough motivation for many people to leave their home and deal with the fear of the unknown in the new world.
The colonists were far enough away from England to enjoy more freedom than those who had remained in England. They had a chance to see there was another way. The old way was as old as civilization. The new way, connected to religious and personal freedom, was closer to an ideal way; heaven on earth. The idea of inalienable rights comes from religion not monarchies. The left argues religion from the POV of the King of England, not the colonists.
The founding fathers understood the usefulness of government. But based on the English government and power structure model, they also saw how government can also become overbearing and an instrument for violence and corruption. They were looking for a new sweet spot. Government should be like a butler to its citizens, not an overlord. The butler will serve the citizens so they are free to pursue life, liberty and happiness. The King's government was that of an overlord trying to control lifer to maintain power.
Or this. Were it possible to know original intent, then why a judiciary, and why a Supreme Court?
The Supreme Court has the authority to make a ruling on a Constitutional case. I may not be free to do so objectively because it has to be mindful of the power it has to changed the lives of people.
Imagine a totally ignorant person reading a Constitution and its second amendment. Only it is not the US Constitution but that of a un-named new country that has freed itself from colonial power through a bloody separatist war.
Thought process on reading the second amendment: "Militia? Like an armed para-military group? OK well if it says there can be para paramilitaries running around with guns to keep the army in check I guess that's what it says. . OK so we let them keep their guns, in case the government misbehaves they can take over. Maybe like the third pillar of democracy. OK. Go for it. Should be fun to watch."
The Supreme Court cannot be so recklessly free in its interpretation. It is not that it is not possible to know the original intent, or read at face value, or in its most likely meaning, it is simply not possible to even discuss publicly the interpretation without being very careful to take into account the huge impact discussion will cause. It is not possible simply because the Supreme Court discussions as well as decisions are no dinner conversations but really government policy-making.
When every thought is public, you have to be careful what you think.
Maybe nowhere is not the best word. I think I should say "a zig-zag course to a point somewhere in between the two destinations, a destination which neither party is happy to reach."
Being there, I watched the confirmation hearings of Chief Justice Clarence Thomas. I watched in on C-SPAN at the time, which was more interesting than regular TV. I saw the opposition to his appointment. At another time I also remember seeing around campus people wearing a button with the word "BORK" crossed out. This was during the confirmation hearings of Justice Robert Bork.
If the appointment of a Supreme court justice is such a political issue, I would think that that is because the composition of the Supreme Court determines the future course of the history of the country.
With such widely contrasting opinions, rather than interpret the Constitution correctly, if that were possible, it seems that the constitution is simply a football in the hands of liberals and conservatives, each trying to take a hold of it and steer it into their own goals.
Can you make a decent guess based on whatever is appropriate? Sure. Can you run a country based on decent guesses? You have to!
Or this. Were it possible to know original intent, then why a judiciary, and why a Supreme Court?
The distinction is categorical: either you know or you do not know. If you claim to know, or that knowing is possible, please make your case.
The reason you need judiciary and a Supreme Court is criminal behavior trying to undermine original intent using lawyer tricks. Supreme court and other justices are appointed by politicians who, like monarchies, will try to stack the deck in their favor, using beholden people of like minds. When there is a social issue, watch how the trained seals vote. They will vote down party line and sugar coat their answer, with lawyer tricks, so it looks like a spontaneous thought out inference.
If you go back to the Pilgrims who settled America, and the criminal and political prisoners sent to settle Australia, neither settlement was going to be a cat walk. These people were not going to arrive, like modern illegal immigrants, to land with jobs, social services, health care and logistics all set up by big Government. It was going to be a wild and untamed place. Their survival would depend on rugged individualism, cooperation, and a need to improvise. This set the tone. Not many people wanted to go there unless ordered, pressured, or as a way out of their current negative predicament.
Religious criminals, civil criminals and political prisoners were willing to go, because what they had in England was not good, and they were willing to take the chance. It was worse for them in England because monarchy rule and the heavy hand of government had highjacked religious freedom, and stack the deck in favor of the ruling class. They had two sets of laws and their own version of PC speech.
The founding fathers of the Constitution, would include things that represented the original founding father, relative to them; freedom of speech for political prisoners, freedom of religion for the spiritual and pilgrims, and freedom to pursue life, liberty and happiness for those impacted by the dual standard legal system of monarchy rule.
These were the things big government had stolen to maintain the status quo. The Constitution also addressed rugged self reliance and individualism, since this was needed to tame and settle the frontiers. The Constitution was about a new way of life based on the needs of a moving frontier, that was always ahead of government logistics, and not slow boated behind it. The idea was to unleash human potential; Government of the people, by the people and for the people. It was not supposed to be a government of, by and for special interests groups; ruling classes, who control the people. That was the old way of monarchies.
The bottom line is the Democrat preferred the monarchy way, and try to regress backwards by pretending to move forward. For example, slavery in the Democrat south was a way for someone to play the role of royalty, with control over life and death. Undermining original intent started early. The removal of slavey by the Republican brought original intent back. The slaves were the pilgrims and political prisoners of old.
For example, slavery in the Democrat south was a way for someone to play the role of royalty, with control over life and death. Undermining original intent started early
Well you could argue this: slavery was OK by the Constitution when it was written. Of course there could be improvements along the way, with the intent of broadening the scope of the constitution, as Judge Souter says, there are parts of the Constitution which are "in tension" with each other.
Supreme court and other justices are appointed by politicians who, like monarchies, will try to stack the deck in their favor, using beholden people of like minds
Interpretation is one thing, playing politics with the Constitution is another. I see the difference more clearly now. One could argue which is which, though.
Comments (68)
*ahem*
...The Fuck?
:strong: :wink:
Tiff, you have two teenage sons, correct? I imagine one day they may have girlfriends who may one day become your daughters-in-law and heaven forbid this, but the new conservative court may very well decide within the next 20 years to overturn Roe v. Wade, and either allow states to determine abortion rights or Federally ban abortion nation-wide, and again, heaven forbid, but one day your daughters-in-law may be told by their doctor that they are carrying your sons stillborn, or a child with a serious terminal condition, that they must carry to term because abortion will most assuredly be illegal in Arizona and I know you would love your hypothetical daughters-in-law because how could you not love the women whom your sons married, and I know you would hate to see them in that pain that could have been avoided if only Roe v. Wade were not overturned by a conservative court that you are now gleefully celebrating, and if this hypothetical scenario does not happen to you in particular, you can be very much assured that it can happen and will happen to some other woman should Roe v. Wade be overturned (by six men, of course), which again, is a very real possibility.
With a decidedly conservative court, we can be assured the labor unions will continue to be beaten back (as most recently demonstrated by the recent blow to public-sector unions), hurting stronger wage growth and stronger worker rights, and we can be assured that LGBT rights will not progress any further, and could be scaled back in some cases (although a majority of Americans now support same-sex marriage, so the court may be more hesitant to chip away at gay rights).
The outrageous Citizen's United decision will not be overturned, and a deluge of money will be continue to be poured in politics by wealthy individuals for their own self-interested purposes, so be assured that your voice will matter less and less in the political realm as it's overshadowed by a wave of cash, but I imagine, Tiff, that you'll be swayed by the influx of deceitful political campaigns paid for by wealthy individuals who care only about their bottom-line.
I could get into gerry-mandering and voting rights, or gun control, etc. but it's all just too much now.
Quoting Agustino
As @Michael stated, a member of the Supreme Court's loyalty, as a member of the judicial branch, ought to be only towards the United States. Not the office of the Presidency.
Where does your copy of the Constitution speak of the right to abortion?
Why should I be required to fund a union that sends part of that money to political candidates I don't support?
Why does the government have the right to limit the way free speech is funded?
Should a Justice worry about the outcome of the decisions when he or she decides, or should he or she just decide based upon the Constitution says? The word "Constitutional" has been twisted by the left to mean "moral," and then the debate centers on such questions as "how would you like it if a woman were forced to have a baby she didn't want" and the like. Let us assume it would be horribly immoral to force such a pregnancy to term, granting all of your points as valid, how does that make it unconstitutional unless you really just mean immoral? I don't hear you arguing vehemently that the penumbra of the Bills of Rights demands the legality of abortion (The Roe v. Wade reasoning), largely because it's preposterous. You see no problem with slapping down a rule just because you think it's right even though the Constitution says nothing about it?
And let us assume you have some other far reaching way of interpreting the Constitution, you can't see any legitimacy in someone else disagreeing with that approach and actually insisting upon looking at the document?
So then I'm not quite sure where your gleeful reaction to a conservative court is coming from. It seems highly misplaced.
Conflating the Constitution with morality is most assuredly a right-wing position, brought on primarily through the vacuous 'Originalist' interpretation on the Constitution which would shackle this Nation to the 18th century.
A little of both. The US Constitution is our touchstone. Its the oldest constitution in the world because of the flexibility we allow in interpretation.
If we get rigid about it we'll lose it.
The Constitution protects a person's liberty. Is it preposterous to rule (as the Supreme Court did in Roe vs Wade and Planned Parenthood v. Casey) that the choice to have an abortion is a liberty, and if so why? It's not as if the Constitution actually provides an exhaustive list of what it means by the term.
I was saying the left conflates the Constitution with liberty, not concerning themselves with the actual words of the document, but instead it's generalized meaning. If a statute were passed in the 18th century, wouldn't we be bound by the words they used at the time? It's not like we can't change the words if the times have changed, but if we don't, then it sure seems we're always going to be stuck with what we said when we said it.
I don't know what it means to lose the Constitution, as if one day we'll just stop reading it. A real way for a document to lose meaning is to make it mean whatever you want it to mean. If you're not going to really pay attention to the words, but you're going to just make if do whatever you can't get the legislature to do for you, then the words become meaningless.
If the list of liberties did include abortion, why was it illegal in every state upon ratification of the 14th Amendment, which uses the term "liberty" you're relying upon? When the 13th Amendment was ratified, the slaves actually became free. Why didn't abortion stop upon passage of the 14th? Likely because it didn't mean that?
And to be clear, the right to liberty that was found in the 14th Amendment isn't some generalized notion of the right to abortion, but it is a complex system of rights divided by trimester, where one has lesser rights to abort each trimester and the state has greater rights to regulate as each 3 month period elapses. That is a bit preposterous. In fact, it sure sounds like judicial legislation. I would suspect that if pre Roe v. Wade we put 100 legal scholars in separate rooms and asked them to determine if there were a Constitutional right to abortion and, if so, to set it out, none would have come up with the reasoning and three trimester system found in Roe v. Wade.
And do you think that has happened to the US Constitution?
Because the 13th explicitly mentions slavery, whereas the 5th and 14th don’t explicitly mention abortion, and so it requires a case to be brought to the Supreme Court to argue that such-and-such a thing is a liberty and so protected, which eventually happened. I’m sure the due process clause has been used to strike down other laws that forbade liberties that also aren’t explicitly listed in the Constitution.
It’s no different to using the First Amendment to protect Citizens United. There’s no mention of campaign donations in the Bill of Rights yet the court ruled that they count as a kind of speech.
Hence the due process. Liberties can be restricted if doing so serves some greater good, and the case was made that the closer to viability the more reason there is to restrict this liberty.
Although your argument here is less a case for abortion not being a liberty and more a case against allowing abortion to be restricted even in the latest stages.
The road we're going down? If we are in fact on that road, then give me an example. What part of the constitution has become meaningless due to loose interpretation?
This is confusing. There are two types of due process: procedural and substantive. Procedural due process requires, at a minimum, notice and hearing before you can be deprived of something you were otherwise entitled to. For instance, you have the right to a fair proceeding before they send you to jail or fine you or take your property. Substantive due process simply describes where the legislative power ends and there is a right you are entitled to. It is subject to much debate. You seem to be arguing that the trimester system is a type of procedural due process, but it's not. I see what you're saying, that the trimester system is a way of making abortions fair, but really the trimester system is a description of the actual right that was extrapolated somehow from the Constitution, describing where the State's interest in regulating abortion begins and ends. Quoting Michael
My argument is entirely one of whether abortion is a right set out in the Constitution. I am pro-choice and believe a better society is one that allows abortion, having no real objection to the trimester framework. I just submit it's a legislative function to make such laws and it's disingenuous, intellectually dishonest, and an over-reach by a non-democratic body to claim they found the right to abortion in our highest, most controlling document that trumps (not Donald) everything else.
I meant substantive due process. Despite the right to liberty, imprisonment isn't unconstitutional. Despite the right to free speech, criminalizing perjury is allowed. Despite the right to bear arms, some types of weapons are forbidden. Nowhere (as far as I know) does the Constitution actually specify the limits of (at least some of) these rights. It is for the Supreme Court to decide, which it does, and that's entirely appropriate. I don't see why placing restrictions on abortion is any more an overreach than the aforementioned restrictions. Or would you argue that the Supreme Court is/would be wrong in those cases too?
Quoting Hanover
Liberty is a right and the Supreme Court decided that abortion counts as a liberty, just as free speech is a right and the Supreme Court decided that campaign donations count as speech. They have to make these kinds of decisions because the Constitution didn't come with a glossary.
And this responds to @Michael's post as well regarding substantive due process.
A quick history of this. The 14th amendment was passed following the Civil War in 1866 that stated, "nor shall any State deprive any person of life, liberty, or property, without due process of law."
In historical context it appears to mean that you can't take people's stuff or deprive them of basic freedom without first giving them a fair trial and opportunity to be heard. In fact, that's how it was interpreted initially and it was referred to as the right to procedural due process. The Amendment was then used to make some of the Bill of Rights applicable against the states (but not all). That is, it was asserted that some of the basic liberties set forth in the Bill of Rights were instances of "liberty" that a state could not deprive you of. A couple of notable examples where a state can deprive you of a right listed in the Bill of Rights are the right to a trial by jury in a civil suit and the right to a grand jury (the federal government cannot deprive you of such a right in a federal proceeding).
The idea of making sure all people receive fair trials makes sense in the historical context of blacks having just been emancipated and the idea of making the federal constitution applicable to the states makes sense since in the historical context of the states in rebellion having just been brought back into the union.
So far so good. The issue is that if the Court has recognized that certain enumerated rights are applicable to the states, it can now start deciding which unenumerated rights will become applicable to the states because the 9th Amendment says that there are some rights not enumerated. And this is where this concept of substantive due process derives (as opposed to procedural due process), which is that we can now look for other unenumerated liberties and demand that the state protect them.
Fast forward to 1905 with the Lochner case, a case striking down economic regulations that were intended to protect workers by limiting how long they could work in a given week. That case said it was unconstitutional to regulate how a worker could decide how he wished to freely contract to labor. There were additional Supreme Court cases that followed that similarly protected economic substantive due process, but in 1937 that era ended with a case striking down Lochner and making clear that the Court would allow employment regulation and it would exercise great caution in locating new unenumerated rights.
Fast forward to 1965, which is when the Court found a rejuvenated interest in finding unenumerated rights, changing course from the era of caution. Moving through the 60s and 70s, it was determined that some of the unenumerated rights that we had were the right to use contraception, the right for interracial couples to marry, the right to abortion, and the right to engage in sodomy (that was in the 90s) It was found however that we don't have the right to state assisted suicide.
In the 1960s, it was decided that there would be no specific formula for deciphering these rights, but the Court was just to make a case by case assessment. In 1997, a case indicated that the Court ought to recognize those unenumerated rights "deeply rooted in the in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” However, this formula was not used in 2015 when it was determined that gay marriage was an unenumerated right.
So, to answer your question: The 14th Amendment has become meaningless due to loose interpretation. The 14th Amendment states a state may not deprive you of contraception, intermarriage, abortion, sodomy, or gay marriage. You may however be deprived of the right to a jury trial in a civil case, the right to a grand jury, the right to contract to labor however you want, and the right to assisted suicide. There is no formula for deciding where these rights come from, but it's left up to the decision of the Justices.
That hardly sounds like they're following rules or laws, but just sort of deciding. And they don't just make generalized holdings like "you have the right to an abortion." They say, "you have the right to an abortion in the first trimester" and they lay out a very specific rule, as if all of that is a sacred right.
I think the rule is very clear, though, in how unenumerated rights are found. You simply look at the prevailing view of the political left and you declare it right and just and you enshrine it in the Constitution. It then becomes a moral statement decreed by their atheistic god or something and it stands forever immovable. I think it's clear that the Court is just looking to public sentiment when it finds these rights and they change with the political climate. That's not interpretation of a document. That's just what a good politician does.
The problem, though, is that the Constitution doesn't define "life", "liberty", "property", or "speech", so how can the Supreme Court determine if a law wrongly infringes on these rights? If the Constitution doesn't tell us what these things are, and if it's wrong to infer anything that isn't explicit in the Constitution, then such rights are effectively meaningless.
By necessity the Justices have to look outside the Constitution to determine if something like abortion is a liberty or if something like campaign donations count as speech.
The slippery slope of your position is that nothing can be explicit because if we don't know what life, liberty, property, and speech is, we don't know what slavery is either and so maybe they were never emancipated, and maybe we don't know what we're saying to each other right now either.
Anyway, there are variety ways of interpreting words, one of which is to look at how "liberty" was used in 1866 when it was used, and it most clearly did not refer to abortion or sodomy. It's also possible to set up a standard that can be followed, but the Court is reluctant to do that because they want that to change that as well over time. My point here being that they've not defined liberty, they've given us some examples of it.
Why doesn't my right to "liberty" include the right to own a cat? If you can make a legitimate case for why it would be unconstitutional for the state to regulate my right to cat ownership under the 14th Amendment, have you not made the Constitution pretty meaningless? What is the Court's working definition of "liberty" and why does it include abortion but not assisted suicide, sodomy, but not the right to work 70 hours per week?
You just did a wonderful job of explaining how we currently understand what the 9th and 14th Amendments mean, so obviously they aren't meaningless. If some familiarity with precedents is required to fully understand the law, that's business as usual.
Thomas Jefferson was asked to rewrite the statues of Virginia after the revolution (it was known that Virginia's law would become the model all the states would follow). Jefferson refused, saying that every word in a law code is the beneficiary of generations of lawyerly wrangling and it would be wrong to curse future lawyers with having to wrangle over a totally new set of words. So Jefferson knew that the meaning of the words continually evolves. Virginia's law still includes the Magna Carta, which most certainly is not interpreted today the way it was in 1215. Would you seriously hold that it should be?
Quoting Hanover
Are rightists generally opposed to contraception, intermarriage, abortion, and sodomy? I don't think so. And if they are, Congress can further amend the constitution to clarify and all's well.
I think this is the wrong way to understand language. You and a slave owner might mean the same thing by “moral” but disagree on which things are moral. So we and the people of 1866 might mean the same thing by “liberty” but disagree on which things are a liberty. The original meaning interpretation of the Constitution requires that we consider what the people who wrote it meant by the term, and presumably it meant what it does now, even if we have a different understanding of which things are covered by that meaning.
What does "liberty" mean and how is it being used in the various cases I cited? When faced with a novel issue regarding whether something is a substantive right, how do I go about that analysis so that I might expect my conclusion would be consistent with someone else's? If there is not standard to determine what is a substantive right, how can I ever say someone was right or wrong in their conclusion?
Quoting frank
That's not what Jefferson was saying. America inherited its laws from England and part of the common law tradition is that judges interpret the meaning of laws and render binding legal opinions explaining what the laws mean. His point is well taken, that if you write a whole new set of laws, you're going to discard perhaps hundred of years of precedent clarifying the meaning of those laws. This doesn't point to the evolving meaning of words, but actually the opposite, which is that over time the meaning of statutes become more clear and more well defined based upon precedent. Courts reversing themselves and changing the meaning of terms does occur from time to time, but that can be based on all sorts of things and the role of stare decisis is a matter of debate.
I don't really see what Jefferson is saying here is applicable to how judges are to extract meaning from terms. Jefferson's comment relates to the significance of precedent. Our question deals with Constitutional interpretation and what standards you use to determine meaning from words.Quoting frank
You'll have to give the cite to where the Virginia Code contains excerpts from the Magna Carta translated from its medieval Latin so I can see exactly what you're talking about.. As your Jefferson quote made clear, the US did accept the common law interpretations from the English courts and you can find such references in very old cases. So, yes, if there were a situation that cited a Virginia statute that originated with the Magna Carta and there were ancient court interpretations of those rules, that would be helpful in deriving meaning of the statute. Of course there's over 800 years of additional interpretation that needs to be considered as well.
The only way we can possibly ascertain the meaning of a word used in 1866 is by looking to how it was used. And what we know is that liberty did not include the right to abort, to intermarry, to engage in sodomy, and to marry someone of your same gender. I think it's clear that the word "liberty" means something quite different today than when it was written. You seem to be saying that it means the same today as before, but how do you know that if all indications are that they meant something far different.
But let's clarify, what is meant by "liberty," and how would I know if I have a right to cat ownership? My guess is that I don't, largely because it's not a hot-button issue for the left and it doesn't have to do with relationships or sexuality in some way. As far as I can tell, the unenumerated 11th right is the right to marry, to have sex with whoever I want, to have whatever sort of sex with I want, and to discard the remains of that sexual encounter without government interference. Isn't that really what "liberty" really is here? And when I look at the enumerated rights, this 11th right doesn't seem to flow that well with the other rights, like the right to free speech, the right against illegal searches and seizures, the right to counsel, and the right to be free from cruel and unusual punishment. I mean, really, you derived the right to have sodomy by extrapolating from the other amendments?
The concept of rights is arguably Rome's greatest gift to us. The original meaning refers us to the ways of nature. For the Romans, right and health were identical. The rights of a citizen (and slaves as well) became known by observation of what is most life-giving to individuals and to society as a whole.
So it would be appropriate in regard to the way we have worked out the role of the Supreme Court to ask if our judges have been doing a good job of identifying what is beneficial to the American society. I'd say they have pretty good track record. And if they fail, as I said, Congress can rectify that.
I think you're grumbling about some democratic principle. I would say a woman has a right to an abortion. I think you agree, but you think it would be better if the whole society continues to suffer because of the inability of congressmen to amend the constitution. I honestly don't understand that attitude.
Quoting Hanover
You're denying that Virginia's statues contain the Magna Carta?
The democratic check on the Supreme Court is very limited and onerous, requiring Constitutional amendment. If that were your attitude, you wouldn't care who sits on the Court, considering we can just undo it with an amendment.
Quoting frank
This is the crux of the entire debate: What is the appropriate role of the Court and how does it affect our democracy? If we are being ruled by 5 justices, we're not an effective democracy. The role of Congress is to consider matters of policy.Quoting frank
No. I asked for the cite to it because I couldn't find the specific statute you were alluding to. I trust your statement, but I'd like to see it for academic sake. It'd be interesting to see how their courts have dealt with such ancient references.
That's like saying that because historical people referred to the mentally ill as being possessed by demons then the meaning of the phrase "possessed by demons" at that time meant "mentally ill". But of course that's wrong. It meant what it means now. They were just wrong to refer to the mentally ill as being possessed by demons. And historical people didn't refer to slavery as being immoral. Does it then follow that the meaning of the word "immoral" has changed, and that slavery isn't immoral (as they meant by the word)? Or is it that the meaning is the same, and they were just wrong to not refer to slavery as immoral?
Quoting Hanover
I already brought up the example of the Supreme Court ruling in Citizens United v. FEC that campaign donations are a form of free speech, despite the fact that the Constitution never explicitly states that it is. This kind of interpretation of the Constitution isn't exclusive to situations that liberals favour, so I don't know why you're trying to turn this into a partisan issue.
Quoting Hanover
I'm deriving it from the facts that a) liberty is a right and b) sodomy is a liberty. Don't you do the same for the case of vaginal intercourse between a husband and wife? Or would it be wrong for the Supreme Court to rule against a law that enforced celibacy because the Constitution never states that sex is a right?
I think you must be fully aware that the difficulty in amending the Constitution is the very reason people on both sides of the aisle have appreciated actions of the Court to set straight wrongs. I'm asking out of genuine curiosity. Do you not know that?
Quoting Hanover
As I said, the effect of the way we've been doing it has been overwhelmingly beneficial. Do you disagree?
Quoting Hanover
Oh. I either learned that from a book about the revolution or a book about Jefferson. I went through a huge Jefferson phase a few years back. I'll see if I can find it.
This isn't really analogous. We would derive their meaning through use, and mentally ill would refer to those with particular behaviors. Their definition of being possessed by demons is empirically incorrect. If I declare X, Y, and Z "liberties," we can arrive at their underlying definition by analyzing how they use that term, but unfortunately there is no empirical reference for us to determine if their self-proclaimed meaning were correct. Quoting Michael
If they offer a definition of "moral" that is at odds with how they're using it, then we can say their stated definition is wrong. If you're equating "liberty" with "moral," I think you're on to something, and my objection is very clear that 5 people don't need to be philosopher kings telling 100s of millions of Americans what is right and wrong. That's what the ballot box is for.Quoting MichaelWhat is the principle you adhere to that I can use to determine what is a liberty though? Is cat ownership a liberty and why or why not?
Planned Parenthood v. Casey states that "matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." That seems like a good answer. It likely excludes cat ownership and includes consensual vaginal intercourse between a husband and wife.
Quoting Hanover
And when a majority of the population are in favour of mistreating some minority? We just have to accept it? A Supreme Court being able to rule that something not explicitly enumerated as a right in the Constitution is nonetheless implied by something that is is a useful counter to the injustice of a tyranny of the majority.
Mm, that sounds right. I certainly can't think of any (non-religious) principle that would cover regular sexual intercourse and not also cover oral and anal sexual intercourse. It must be a package deal.
One of the problems with the Constitution is that it is 200+ year old document written to meet the problems that could then be seen in late 18th century governance. While it needed to be, and has been amended, it has not been re-conceived for a much different world that now exists.
We could call a constitutional convention and write a new constitution. After all, it isn't only abortions that are at issue.
Maybe the Supremes could decide that, No, actually we think the state does have an interest in suppressing contraception that over-rides the protection of bodily integrity, liberty, and a right to privacy.
Anybody up for attending a constitutional convention in say, 5 years (it would take a while to call and organize one)? My guess is that the descendants of the original social, economic, and political arbitraitors would work VERY HARD to make sure there was a decidedly less permissive cast to any new constitution.
There are two schools of thought here, the "origanlist" and "revisionist" views. Having a thought is not a crime, ie "thoughtcrime". Judge Scalia is entitled to his opinion. It's no his fault. People should know better than to elect a conservative President.
Wikipedia
They don't (or at least Scalia didn't) rely on original intent. They rely on original meaning.
Cats are property, so your right to holding them is protected like all other property.
I'm talking about the right to liberty. The right to cat ownership might be implied by the right to property, but not by the right to liberty (as understood in Planned Parenthood v. Casey), and Hanover was asking about what the right to liberty covers.
There was essentially two classes; royal/upper and peasant. Royalty was based on bloodline and not merit, which meant leadership would often not be qualified, and would often make irrational and selfish demands at the expense of the individual, who had no upward path or say.
What was different about America was the ideas of God given rights; individual liberties, above the rules of the king or queen and big government. Among these universal rights were life, liberty and pursuit of happiness. Before the Constitution, royalty and central government could override these to perpetuate its own power. With the Constitution, the role of government was to become much more limited and was supposed to play a support role toward these ends. The middle class is very new and an artifact of the Constitution; upward mobile all the way to president.
The left appears to want the country to regress backwards to the pre-constitution royalty model. During Obama, the middle class shrunk and the peasant class grew. The goals of socialism and communism is a powerful central government, lording over a peasant under class, that pretends to be happy with this. This can be done via regulations which placed a choke hold on companies and jobs that supported the middle class and grow the upper and peasant classes.
The Clintons are like left wing royalty with them being above the law since the law is created to control the peasants. While a powerful centralize government can be used to squash those threaten the status quo.
When the Constitution was written, the only people who could vote were men who owned property. The founding fathers wanted the voters to be rational and self reliant, instead of emotional and dependent and easily manipulated using emotional appeal. The voter needed to have a stake in the fire, was committed to be in it for the long term, and was a contributor and not a dependent.
The rights of life, liberty and pursuit of happiness was based on self reliant people able to pursue their dreams, unhindered by big government. However, it needed to happen in a way where one person's pursuit did not take away from another. That meant working toward your own goals in ways that added value, so your happiness was not a net loss for others.
The founding fathers did not have an income tax, but only user taxes. The exception was during wars. The founding fathers kept money in the pocket of the people who earned it , so they could pursue happiness. The welfare state and big government violates rights if the taxes needed to help pursue happiness, creates a net loss in terms of other people pursuing their happiness. This should done with charity. Charity is a choice that can bring happiness and therefore is not imposed by big government as a deficit to others.
In the case of abortion, the Constitution would allow abortion in terms of the pursuit of happiness. Women get abortions, so they can get back into the game. However, abortion would need to be paid for by the woman who are getting the abortion. The cost cannot be placed on the backs of others through taxes and regulations. Taxes limit the ability of others to pursue their own happiness. It comes down to all our rights being based on self reliance. It cones back to the original voter profile.
As an example, we have the right to bear arms. This right does not mean the tax payers needs to foot the bill for anyone who wishes to own a gun. The gun owner has to buy his own. This is how rights are supposed to work, which is why only men were able to vote at the beginning. Men expected each other to work hard and buy your own. The women and children were used to the men paying. They were not given the right to vote, since this will turn out bad in terms of stealing rights through irrational redistribution schemes.
1. Grammatical interpretation
2. Law systematic interpretation
3. Legislative historic intent interpretation
4. Historical interpretation (broader than the above, taking social circumstances into account as well)
5. Teleological interpretation
6. Anticipatory interpretation
The tradition in the USA is a strong emphasis on 1 and 3 but there's no good argument as to why this should be the case. Indeed, I find the literal approach in civil law to grossly overestimate lawyers' ability to correctly represent the intent of parties in written form and judges' ability to interpret language that's hardly as exact as they pretend it is.
I think a good argument is that you ought allow the will of the democracy be expressed to the greatest extent possible and that you employ the non-democratic hammer of the Constitution only when you have a clear cut instance of democratic overreach. Since the Court has no external check, judicial self-restraint is a required virtue, else you have 5 philosopher kings running the nation. The liberal meltdown is justified now that Trump can create a Court in his image, but that's only because the Court has too much power.
So, I do think a good argument is that an interpretive system be adopted that limits the creative aspect of the Justices, which would mean limiting the interpretation to the words as they were used instead of looking for Constitutional themes and writing new chapters that appear to fit the theme the Justice deciphered.
My guess is that you'd have some affinity for a limited Court, considering the Dutch system is able to navigate without a Constitutional Court at all. The Court as protector against majority tyranny is greatly overstated. The best you can say is that the Court is generally good at reading the direction of the democracy and forcing issues sometimes sooner than some would prefer.
The Netherlands like the USA doesn't have a constitutional court but it's highest court will hear any appeal provided the appeal concerns a question of law and not fact. What it cannot do, is rule on whether other national laws or signed treaties are in accordance with the Dutch constitution or not but it can give its opinion on a specific interpretation of the constitution. So in the Dutch system it's Parliament's prerogative to interpret the constitution in relation to the laws it passes. Technically it is possible that they pass laws contrary to the Dutch constitution without any possibility to litigate against it, except for the fact that a lot of the norms are also codified in international treaties, which they can check national laws against.
That said, you are probably right that the US supreme Court has more power than, for instance, the Dutch Hoge Raad and that this is cause for concern. However, your conclusion that limiting interpretative techniques limits their power is false. It only results in an exercise of that power in a certain way, it doesn't limit it. Even if it would limit it, it isn't a given that the best interpretation is one that limits the power of the judges employing it. We don't know what "best" is here. Your words seem to suggest it is something procedural or constitutive to you (by which I mean it's relationship to other official institutions empowered through the constitution). But what if in the pursuit of meeting such norms a clearly unjust result for either party comes about, which is entirely possible in that case as "best" is then not related to any result? It seems to me that although a judge would do well to realise his or her position within the constitutive framework, he is ultimately tasked with ruling between the parties and not on its own positron in the constitutional order If another interpretative technique results in a just outcome then he has every reason to employ the other techniques. The dictates of public consciousness tempered by the wisdom of tradition decide what is just and therefore "best" and interpretative techniques are tools to reach those ideals. Hardly measurable of course but then judging usually isn't.
While Canadian constitutionalism is the story of a small bird aimlessly searching for its real mother (since we [s]fell[/s] leaped out of the royal nest that is), by comparison American constitutional identity and interpretation is very much rigid, stubborn and immobile.
In truth both countries have made continual improvements and amendments as their culture, people, and circumstances change and demand adaptation. In their own way, both nations have engaged in reinterpretation while also maintaining original intentions as normative bases for constitutional sovereignty. Within that process, a conservative mind will laud originalism and see the virtue of a constitution as a binding limit against possible future tyranny, and a progressive or reformist mind will see originalism as the binding us to the tyranny of the past. The "living tree" metaphor is likewise criticized as open to arbitrary changes in future interpretation, and supporters point out that it frees contemporary populations from the arbitrary whims and perhaps poorly chosen values of the past.
In my own view, we do need to respect the original intent of our laws, especially the "highest laws" of the land, and very important laws should not be changeable on mere whim. It should be difficult to alter both the intent and content of constitutional laws and amendments, but it mustn't be too difficult, or impossible, lest we have no democracy to speak of.
When Canada finally gained the right to alter its own constitution acts, it abandoned one aspect of original interpretation and intent in search of its own sovereignty (it abandoned the idea that it needs British consent to change its constitution), and that was a good thing, but it also decided (at least on paper) to keep the original intent of various treaties and agreements between the British monarch and "first nation" indigenous Canadians, which was also a good thing (many people don't know, but Canada wasn't exactly formed through conquest of indigenous groups, but rather through treaties and agreements with them). It took Canada a long time to find it's own constitutional identity (it's still searching in truth), perhaps too long, which might explain why Canadian constitutional law is so infatuated with the living tree metaphor.
America was birthed in righteous rebellion, and they eloquently articulated exactly what they wanted and what their constitutional identity was in words that are still admired to this day ("All men are created equal", "life, liberty, and the pursuit of happiness"; freedom from tyranny), and reinterpretation of these original words and to whom they should apply has definitely been a good thing (applying them to women and non-land-owning-whites). As new social issues and values rise, it is the prerogative of a given democratic public to have a say in what should be changed. Suffrage for non land owning white males is one example, abolition of slavery is another, minority and women's suffrage is another, and state level equal rights amendments are a great example. Gay marriage, abortion and transgender rights are also things we the people should have a say about. We need to think very carefully about what is best for us in the world of today, and these decisions are not easy. Calling for a broad conservation of historically recent values is good in some situations, and bad in others; it depends on the issue and the value.
Anticipatory interpretation sounds interesting, what does it consist of?
I tend to agree with Scalia or at least, I assumed that Scalia's interpretation was the best one, since it relied on what the constitution meant at the time it was written. I do not think Scalia was lying, he chooses to take his stand. In fact he calls it the 'dead' constitution, and is well aware that he cannot convince the other supreme court judges otherwise, and also of the fact that SC judges are political appointees, making the 'mad swings of the pendulum' (Judge Thomas) possible.
Which type of interpretation best serves the common good it is impossible for me to say, however the 'mad swings of the pendulum', if it is truly random maybe the fairest system of all.
Quoting Hamlet
Here in God's favorite country, the goal of the court is to interpret laws consistent with the intent of the law-maker (the legislature). However, if the language of a law is unambiguous, it is to be applied in accordance with its "plain meaning." Consideration is given to sources beyond the language of the law, even legislative history, only if a law is ambiguous (subject to different interpretations by reasonable people). Also in that case, the rules of statutory construction apply. Many of those rules are expressed in solemn and impressive Latin phrases. For example: Expressio Unius Est Exclusio Alterius meaning when one or more things of a class are expressly mentioned others of the same class are excluded.
Who would have thought that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" would be considered ambiguous? This is intended to be ironic, if anyone wants to know.
Of course, there are many more fun things to consider. Is a law to be strictly construed, or is substantial compliance with the law adequate? This can be a consideration regardless of whether a law is unambiguous.
Fascinating.
Put it down to ignorance then,
The above quote, just to venture my opinion, would, I think, be most naturally be interpreted as a law permanently establishing a Militia. I do not doubt that this idea has been interpreted as the right of every American citizen to carry an M-16 or a weapon of choice. Maybe someone can explain how this came about. There is the Wikipedia article:
https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution
How do I find out what the above part of the Constitution, the 'right to bear arms' meant at the time of writing?
Is it
a) impossible to know what it actually meant or even
c) impossible to know what it most likely meant by studying the history and culture of the time?
I watched judge Souter's speech. What he says is clear: the constitution is to be interpreted, and 'fair reading' approach would not have served America well.
The issue is that the fair reading approach does exist. Is it the best approach? No, but I doubt that it is irrelevant to the discussion. Once can read it and say: this is one approach, this is another, and I believe that the citizens of the United States are better served by a progressive, open- ended approach to interpretation of the constitution.
It is unclear, however, how such an approach can be free of abuse.
A ship steered by the net result of see-sawing bench of liberal and conservative judges cannot but steer a zig zag course to nowhere.
Original intent has to go back to before the Constitution was written, so we can understand what the motivation was that led to the writing. You don't start the day it was written, since the thought process and need began years, if not generations, before it was written.
The USA was originally a colony, of a colonial empire, ruled by king and queens. Under a monarchy there were two classes of people; upper and peasant. The King had the divine rights of kings and had control over life, death and taxes. While royal blood line gave advantages but did not always mean competence. History is full of leaders who should not have been, but were, due to royal entitlement. Lack of ability in power can lead to insecurity and paranoia, or to a lecherous lifestyle.
Settling the new territories was not something most people wanted to do. Australia used criminals and prisoners. The Pilgrims came to America for religious freedom. The Royal control over religion was enough motivation for many people to leave their home and deal with the fear of the unknown in the new world.
The colonists were far enough away from England to enjoy more freedom than those who had remained in England. They had a chance to see there was another way. The old way was as old as civilization. The new way, connected to religious and personal freedom, was closer to an ideal way; heaven on earth. The idea of inalienable rights comes from religion not monarchies. The left argues religion from the POV of the King of England, not the colonists.
The founding fathers understood the usefulness of government. But based on the English government and power structure model, they also saw how government can also become overbearing and an instrument for violence and corruption. They were looking for a new sweet spot. Government should be like a butler to its citizens, not an overlord. The butler will serve the citizens so they are free to pursue life, liberty and happiness. The King's government was that of an overlord trying to control lifer to maintain power.
The Supreme Court has the authority to make a ruling on a Constitutional case. I may not be free to do so objectively because it has to be mindful of the power it has to changed the lives of people.
Imagine a totally ignorant person reading a Constitution and its second amendment. Only it is not the US Constitution but that of a un-named new country that has freed itself from colonial power through a bloody separatist war.
Thought process on reading the second amendment: "Militia? Like an armed para-military group? OK well if it says there can be para paramilitaries running around with guns to keep the army in check I guess that's what it says. . OK so we let them keep their guns, in case the government misbehaves they can take over. Maybe like the third pillar of democracy. OK. Go for it. Should be fun to watch."
The Supreme Court cannot be so recklessly free in its interpretation. It is not that it is not possible to know the original intent, or read at face value, or in its most likely meaning, it is simply not possible to even discuss publicly the interpretation without being very careful to take into account the huge impact discussion will cause. It is not possible simply because the Supreme Court discussions as well as decisions are no dinner conversations but really government policy-making.
When every thought is public, you have to be careful what you think.
Maybe nowhere is not the best word. I think I should say "a zig-zag course to a point somewhere in between the two destinations, a destination which neither party is happy to reach."
Being there, I watched the confirmation hearings of Chief Justice Clarence Thomas. I watched in on C-SPAN at the time, which was more interesting than regular TV. I saw the opposition to his appointment. At another time I also remember seeing around campus people wearing a button with the word "BORK" crossed out. This was during the confirmation hearings of Justice Robert Bork.
If the appointment of a Supreme court justice is such a political issue, I would think that that is because the composition of the Supreme Court determines the future course of the history of the country.
With such widely contrasting opinions, rather than interpret the Constitution correctly, if that were possible, it seems that the constitution is simply a football in the hands of liberals and conservatives, each trying to take a hold of it and steer it into their own goals.
The reason you need judiciary and a Supreme Court is criminal behavior trying to undermine original intent using lawyer tricks. Supreme court and other justices are appointed by politicians who, like monarchies, will try to stack the deck in their favor, using beholden people of like minds. When there is a social issue, watch how the trained seals vote. They will vote down party line and sugar coat their answer, with lawyer tricks, so it looks like a spontaneous thought out inference.
If you go back to the Pilgrims who settled America, and the criminal and political prisoners sent to settle Australia, neither settlement was going to be a cat walk. These people were not going to arrive, like modern illegal immigrants, to land with jobs, social services, health care and logistics all set up by big Government. It was going to be a wild and untamed place. Their survival would depend on rugged individualism, cooperation, and a need to improvise. This set the tone. Not many people wanted to go there unless ordered, pressured, or as a way out of their current negative predicament.
Religious criminals, civil criminals and political prisoners were willing to go, because what they had in England was not good, and they were willing to take the chance. It was worse for them in England because monarchy rule and the heavy hand of government had highjacked religious freedom, and stack the deck in favor of the ruling class. They had two sets of laws and their own version of PC speech.
The founding fathers of the Constitution, would include things that represented the original founding father, relative to them; freedom of speech for political prisoners, freedom of religion for the spiritual and pilgrims, and freedom to pursue life, liberty and happiness for those impacted by the dual standard legal system of monarchy rule.
These were the things big government had stolen to maintain the status quo. The Constitution also addressed rugged self reliance and individualism, since this was needed to tame and settle the frontiers. The Constitution was about a new way of life based on the needs of a moving frontier, that was always ahead of government logistics, and not slow boated behind it. The idea was to unleash human potential; Government of the people, by the people and for the people. It was not supposed to be a government of, by and for special interests groups; ruling classes, who control the people. That was the old way of monarchies.
The bottom line is the Democrat preferred the monarchy way, and try to regress backwards by pretending to move forward. For example, slavery in the Democrat south was a way for someone to play the role of royalty, with control over life and death. Undermining original intent started early. The removal of slavey by the Republican brought original intent back. The slaves were the pilgrims and political prisoners of old.
Well you could argue this: slavery was OK by the Constitution when it was written. Of course there could be improvements along the way, with the intent of broadening the scope of the constitution, as Judge Souter says, there are parts of the Constitution which are "in tension" with each other.
Quoting wellwisher
Interpretation is one thing, playing politics with the Constitution is another. I see the difference more clearly now. One could argue which is which, though.