Whenever a debate arises about the constitution, most people immediately begin talking about the original intent the framers had. For example, most gun control proponents point out that the framers were probably trying to protect militias.
Now, this is not a debate about gun control. Does it matter what the framers wanted? I think the electoral college is a great example of a situation where it does not matter. They put it into effect because of the stupidity of the masses, but we use it for mostly different reasons.
The list could go on. What do you guys think? If we disregard the intention of the framers, how do we figure out what warrants a reasonable usage of the constitution? Could the job of the Supreme Court include figuring out what we currently intend the constitution to mean?
Well, I think the debate is pretty well set up. Have fun and play nice. :wally
Interpreting the constitution as we currently see fit isn’t the best of ideas… that makes law arbitrary. We try and use the “original intent” mumbo-jumbo to keep some semblence of objective laws but it is clearly far from that as well. I just don’t want to tumble the rest of the way down the hill.
The problem is that there’s no such thing, really, as “original intent.” Or rather, there are a bunch of original intentions–the Framers were a disparate group with many different interests who almost never came to an overwhelming consensus. Add to this that several key parts of the Constitution were arrived at by compromise. (The Anti-Federalist Papers is a good read in this regard.) And then there’s the problem of reconciling strict judicial constructionism with the Ninth Amendment–not exactly what the OP was after, but relevant nonetheless.
That being said, I think we’ve got a fairly good system of judicial review in place. The Supreme Court, for the most part, does an excellent job of balancing so-called “original intent” with the degree to which culture, politics, and society have changed in the intervening centuries. Important, too, is the fact that the Fourteenth Amendment basically changed the face of the Constitution completely; it’s the job of the judiciary to discover how the changing body of law has impacted society and itself.
So understanding what “The Framers” thought about constitution and its amendments may be important, so long as you understand which Framers and appreciate the totality of the constitutional convention debate. But by the same token, the constitution is designed to be ambiguous and flexible (though not, as Daniel Lazare would say, flexible enough to undergo significant changes to its status quo without mass movements and/or bloodshed), and as such is meant to some degree to be viewed through the lens of the present. Marbury v. Madison, at the very least, established the province of the Court as the final arbiter of the Constitution.
As with all things, there are matters of degree. Intent is important to a degree. Did the framers intend a presidential monarchy? no. Does that matter. well, yeah, it does.
Knowing why a law was created is indeed important to understanding its validity.
But I think that what you are trying to get at is support for judicial activism. That is, the courts being able to override legislative or constitutional intent because the judges feel that the law is outdated or stupid. For example, say the supreme court hears a first amendment case. They say to themselves, “well, whatever the framers intended is irrelevant. We are in no danger of an opressive government in these enlightened times. Therefore, we are going to allow the FBI to edit newspapers.”
As a conservative, my attitude is that the constitution has served us very, very well for 200+ years. Don’t mess with it unless we are facing certain disaster.
Well, except that it really hasn’t served us well, absent the context of the time. I mean that the constitution has, in various eras in American history, served just as much as the justification (to the legislature, executive, and or judiciary) for repressive acts as it has as a preventative. There’s nothing in the Constitution, for instance, which specifically addresses McCarthyism, monopoly, or segregation, and indeed each of these things were at one point or another given the blessing of that august document. The Constitution is not, then, a priori something which will automatically “serve us well.”
If there is an ambiguity, and we are faced with two valid interpreatations, original intent should be a factor in deciding which to follow.
First of all, the constitution does not serve as a “justification”. It may allow certain repressive acts, but that does not mean it justifies them. Secondly, the amount of repression the constitution has prevented far outweighs that which it has allowed.
And there’s nothing that specifically addresses Hustler magzine, school prayer, or the Miranda warning. Is the constitution supposed to deal with every possible situation?
Again, the constitution does not “bless” acts. The justices that interpret it might, but the constitution does not.
And doctors still lose patients. Should we dismantle the medical establishment?
I will put Mccarthyism, Jim crow laws and any “repressive acts” on one side of the scale, and every trial, every election, and 200 years of successful self governance on the other. What abouit all of the right s protected and good done? SHould we change that?
What one often sees is a person or group going to the mat over the infallibility of one aspect of the Constitution and then trying to disparage another aspect. E.g. support of the 1st amendment and destruction of the 2nd.
I really do not think that things are that different than they were 200 years ago.
I’m not sure what you’re agruing against, The Ryan, but it doesn’t seem to have much to do with the points that I was making.
I agree that it should be a factor, and said as much in my first post.
The Constitution has served as justification for repression, without itself justifying that repression. Do you see the distinction? I wouldn’t begin to contest the last sentence of your paragraph there, except to say that nowhere in my posts do I imply that the Constitution is a bad thing.
Well, no, and that’s the point. Mr. Zambezi said that the Constitution has served us well. I responded that the Constitution itself is value-neutral or ambiguous when it comes to some major issues, and that it is considered judicial interpretation of the Constitution, legislative judgment in keeping with the Constitution, and political stability engendered by the Constitution which have served us well, not merely the document itself.
The Constitution is an instrument. It can be invoked wisely or foolishly, and the degree to which its invocation is indicative of wisdom or folly is largely a function of present-day context. Plessy v. Ferguson, at the time, was seen to be a good decision. A century later, we think of it as a horrible misstep. Perhaps in fifty years the climate will have changed again. None of this changes what the Constitution means, but rather what we think it means and what we say it means–the document is, as I said, value-neutral in many areas.
Exactly. The Constitution was written to provide a framework for government. Provided within that framework is a judicial system which has become the final arbiter of constitutionality. The Constitution did not “bless” monopoly, free speech restrictions, and segregated railroad cars by itself; in Lochner, Gitlow, Plessy, and similar decisions, however, Justices (and the legislatures which crafted the laws which were in dispute before the bench) used to Constitution to give blessing to those things.
That’s a hell of a straw patient you’ve got there, Doc. I never said anything about dismantling, negating, or otherwise invalidating the weight and legitimacy of the Constitution. Constructive criticism, however, may certainly be in order.
I think I see the distinction that you are trying to make, but I don’t think that you have done so correctly. To “serve” means to successfully provide some purpose. Since the constitution has not justified repression, it does not serve to justify. I think what you mean is that the constitution has been used as a justification. As analogy, if I tried to scoop soup with a knife, I would be using a knife as a spoon. However, it would not be accurate to say that the knife serves as a spoon, unless it acually scoops up the soup.
You did say:
[quite]I mean that the constitution has,in various eras in American history, served just as much as the justification (to the legislature, executive, and or judiciary) for repressive acts as it has as a preventative.
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Which suggests that, while you may not think it’s a bad thing, you don’t think it’s a good thing either.
You’re right in that 1) I had forgotten that I balanced equally the Constitution’s ability to be used for bad and good, and 2) I think the Constitution is neither a bad thing nor a wholly good thing, but rather, as I’ve said, value-neutral to a great degree.
As far as my statement, you and Zambezi were correct in checking me that the Constitution has, on balance, served more positively than negatively for the country and its people as a whole. However, what I said would still stand, I think, were I to make the following emphasis:
By which I mean that today we feel almost none of the effects of the repression instituted in the name of, and with the putative backing of, the Constitution. We have progressed (by our own standards, or maybe my own standards) to the point that the Constitution is usually invoked with care, vision, and wisdom. But there are long periods of our history where repression of one significant sort or another was deemed constitutional–the slave years, at the very least. To this end, then, in those times invocation of the Constitution was as much or more repressive than it was palliative. Now, however, that’s thankfully not the case.
I think I see what you’re saying, but I don’t see why you disagreed with Mr.Z’s comments. The problems you cite are largely the result of either the constitution not dealing with an issue, or people ignoring what it says about an issue. There aren’t many examples where the constitution says something about an issue, and that position has caused problems. So while it may make sense to add more issues to what the constitution deals with, it doesn’t make much sense to mess with the issues it does address.
But then you’re back to the interpretive question of how it addresses those issues. I took exception with Mr. Zambezi’s sentiment that the Constitution has served us well so there’s no need to mess with it, by pointing out that the degree to which the Constitution has served us well in the past is correlative to the degree to which you think the “messing with it” has been positive or negative–that is, the Constitution was designed to be messed with, to be flexible, and to be ambiguous. By itself, aside from providing political stability, governmental guidelines, and a general social framework (which aren’t inconsiderable things, admittedly), it’s no more intrinsically good than messing with it is intrinsically bad.
Mr. Zambezi seems to be contrasting “support for judicial activism” with “the constitution serving us well for 200+ years”; my point is that the two are inextricably entwined, especially after the Reconstruction Amendments. Certainly judicial activism dates back at least to the laissez-faire Lochner decision at the turn of this century (and arguably back to Marbury in 1804); it just might not be the kind of activism Mr. Z was thinking of.
Bottom line: interpretative leeway in applying the constitution to a modern context is not only necessary to keep our political structure relevant, but was to some degree an integral part of original intent in the first place.
What about the former inhabitants of this land?
Does the Constitution’s protection of those members deemed worthy in this society outweigh the destruction of the societies of our predecessors?
The problem with “strict construction” of the Constitution is that most “strict constructionists” (like Bork) seem to think that the only rights we have as citizens are those specifically spelled out in the Constitution. The framers made it very clear that this was not the case with the 9th Amendment:
Thus many so-called “strict constructionists” completely ignore the original intent of the framers expressed in the 9th Amendment.
