Constitutional Interpretation. Again.

“My job is to pick people who will interpret the Constitution, not use the bench from which to write laws,” says the President.,2933,157388,00.html

If that is so, why not seek the smartest judges, or those who have been reversed the least?

What does it mean to “interpret the Constitution” as opposed to writing laws. Does the Constitution provide answers to all questions? Are there right answers out there for people to find?

Is Bush’s judicial appointment strategy inconsistent with the quoted statement?

Is Bush correct about his description of his job in appointing judges?


A judge that interprets the Constitution based on what it says is interpreting the Constitution and not making his own law from the bench.

If self-governance is to mean anything, it is that new law - substantial innovation, change in the law - comes from the people that we elect, and that we can refuse to re-elect if we don’t like what they do. Judges - especially federal judges, who serve for life and may not easily be removed from office - should interpret the words of the Constitution, not create new law.

Well now Bricker, I expected this answer from you (your views are well known :D).

I posed this question to you in the medical marijuana thread, but got no answer.
So I’ll ask again:

Take as an example the Commerce Clause:

Congress has the power to:

and to:

How does a judge go about interpreting this language to reach the result in any given case?

I understand your point, but let me go a little deeper:

  1. Do you contend that there is a basis for this position in the Constitution?

  2. What do you mean by self-governance?

  3. Can you give me an example of a case that best reflects your notion of interpretation?

  4. What’s the best example of judicial law making that you can think of?

90% of the cases, every judge applies the law straightforwardly. The other 10% of the cases, every judge must make contextual evaluations, inferential leaps, and reasoned arguments because the answer is simply not clear at a glance. It is impossible to interpret-not-make-the-law in all circumstances, if by make the law you mean go beyond basing your judgment on “what it says.”

…And Bricker, you still haven’t told me whether you think the Administrative Procedures Act is constitution. Unsurprisingly, it’s relevant to this thread, as well.


At the level of the Supreme Court there are no clear interpretations. Any easy decisions were made at a lower level. So every Supreme Court decision is subject to dispute. If you agree with the ruling you praise the justices for the clear sighted agreement with what was the obvious intent of the law. If you disagree with their ruling, you condemn them for ignoring the law in order to impose their own personal opinions.

It’s a big question.

The short answer is that many problems the Administrative Procedures Act creates have simply to do with delegation of powers. Congress delegates to the agencies much of their ability to make law. Congress assigns to the agencies a certain judicial function.

As long as the regulations promulgate by the agencies could just as well be legit if passed by Congress, and as long as there is a general right to federal judicial review of an ALJ’s findings, I think the APA is constitutional. When we mandate that an ALJ’s rulign be reviewed under an abuse of discretions standard, I think we’ve crossed a line.

Is your specific question related to the delegation of powers, or to the process of non-judidial “trials”?

Or something else?

  1. Yes

  2. The law-making authority in government is vested in the people, as expressed through their elected representatives.

  3. Sure. Which way? A case that reaches a result I like with the process I urge is correct, or a case that reaches I result I DON’T like, but with the correct process?

  4. What government official was in charge of the Kansas City, Missouri, School District, from at least 1977-1995? (Hint: it was a single US federal judge).

This is why I like you so much. You answered these questions like a set of interrogatories. :wink:

a. What is the basis?
b. Is it a structural interpretation, or does the constitution say, “construe me narrowly” somewhere?

Why do we need courts? Let me explain what I am thinking here, and you can tell me where my thinking goes wrong.

I’m talking about Constitutional law, but your theory seems to apply equally to statutory interpretation.

a. The legislature should make the law.
b. The law is written down.
c. The law is obvious enough that we can tell when judges aren’t applying it correctly.
d. We could have courts just for determining facts, but there is no need for them to determine the law because they should already see what it is in the text of the document.

How about one of each. :smiley:

And how about one of each of the other kind? (i.e., a case that reaches the right result, but not using the process you endorse, and a case that reaches a wrong result using the wrong process (I take it you would use the KC segregation case as an example of this last category?)
What about the results in these cases: Dred Scott? Bush v. Gore?, Myers?, (Scalia thinks so); Marsh? (see,


If that were REALLY the case, then answer #1 would have been:

  1. I deny each and every allegation, to the extent any exist, in question #1. I object to the question posed on the grounds of relevance. However, notwithstanding and subject to that objection, I answer “Yes.”

But I was too lazy to type all that out. :smiley:

To assist the reader: What is the basis, in the Constitution, of my position that new law - substantial innovation, change in the law - should come from the people that we elect?

Art I, Sec 1:

The default position on any statement is “construe me narrowly.” If you take the position that words may be added, meanings expanded, unless a rule specifically forbids it, then you are addign a notion without authority to what already exists. My position is clear: the document says X. My authority for that is clear: the document itself. If you take the position that we may add to the document, you have simply created that rule from the ether.

Of course the principle role of courts should be finders of fact. Courts also serve a necessary role in applying the law to a set of facts, where the law is genuinely ambiguous. The law contains terms like “reasonable” and it is perfectly appropriate for a court to decide what “reasonable” means in a given situation.

This is the province of case law, and the value of stare decisis. I do not advocate a civil law system, in which previous court decisions have no precedential value, because it leads to similarly situated persons being treated differently.

A law may punish robbery more severly if the robber is armed “with a deadly weapon.”

Now comes before us a man accused of robbing a bank armed with a set of dentures in his hand, which he threatened to use to bite anyone who resisted him. (“And you know how dangerous the human bite is!”)

The court’s role here is first to determine the facts: was the accused the man at the bank? Did he use a set of dentures in the manner described?

The court’s second task is to determine the meaning of “deadly weapon.” Do dentures constitute a deadly weapon? If the legislature has not spoken in more detail, they must resolve this question with dictionaries and judicial notice of the ordinary meaning of words.

The guy who robs a drugstore with dentures next week is entitled to be treated exactly like the first guy, at least with respect to the deadliness of his weapon.

That sort of determination is the job of the judiciary.

OK. By “right process” I mean courts sticking to their role as interpreters of the substantive law created by the legislature. A court that creates new substantive law on it’s own is “wrong process.” “Right result” means an end result I personally agree with: bad guys goes to jail, deserving individual protected, whatever. “Wrong result” means that I personally disagree with the specific end result of the case. Illegally-obtained evidence suppressed and bad guy goes free might be a “right process, wrong result” type of example.

  1. Right process, right result: Carroll v. US

  2. Right process, wrong result: Kyllo v. U.S.

  3. Wrong process, wrong result: Roe v. Wade

  4. Wrong process, right result: Gonzales v. Raich.

Wrong process, wrong result. The first glimmerings of the substantive due process doctrine!!

Wrong process, right result. (Shaky legal reasoning, but it reversed the Florida Supreme Court’s shaky reasoning).

Right process, right result.

Right process, right result.

Jeez, I don’t know how I missed your reply. :smack: I just now read it, and want to digest it before I respond.

This might be way off base but it seems to me that a rigidly held position that the court must interpret the Constitution by the letter and not the spirit of the document led to a great tragedy.

For years the courts refused to touch the institution of slavery because slavery was not prohibited by the Constitution. In fact there is a clause that requires that escaped “persons held to labor” in a state must be returned to that state. This despite the fact that the preamble says that the whole purpose of the Constitution is to “promote the general welfare” and to “secure the blessing of liberty…” and there is a clause that guarantees a republican form of government. Such a government is established by the people of the state and is installed by the voters, but a large fraction of the people in the slave states, the slaves, couldn’t vote.

By keeping their eyes on the ground and not on the landscape the courts did nothing and slavery was finally abolished only at great cost the the nation, and that cost is still being paid.

It is entirely possible to get so bound up in procedure and legalisms that the reason for the courts, legislature and executive exist is forgotten. I think that reason is to make life better for all of the people and I don’t think rigidly adhering to the letter of the law always promotes that end.

The argument is made that if you cede the slightest leeway away from the strict letter of the law that you have opened the door to all kinds of abuses. Well, adhering to that strict standard also resulted in monsterous abuse.

I think you have to have good judges, not superment or women, but good and trust them to do their job properly for the most part.

Not true.

[Channeling an unnamed poster]
Balderdash, sir! Tommyrot!

Why was it the role of the courts to step in and dictate an abolishment of slavery? Sure, I agree it was a terrible practice. But it was legal. The proper way to change the laws is through the legislature. You cannot look to the courts and say, “Why didn’t you stop this evil?” In a free. representative democratic republic, the courts are not philosopher-kings to determine Right and rule us by edict.

I just can’t imagine that the Courts could have done anything to abolish slavery anyway. The Southern States would’ve gone even more ape-shit over a mandate from the Courts. David: Do you really think the Southerners would’ve just rolled over and accepted the ruling?

Re Dred Scott. How so? Taney, at least, seemed to use original intent (whether he was right or wrong on the actual original intent is a different question) and rejected the “living constitution” argument. In fact, the syllabus makes the point:

Very cogent argument, with well thought out points.

Well, somebody had to. Somebody finally had to step in when other branches of government both federal and local did nothing and say that the states-wise legal practice of “separate but equal” school systems had to stop.

And a nation can hardly be characterised as a free, representative, democratic republic if a large fraction of its population is held as slaves, or hindered in trying to vote and a large fraction of its children are bussed right by good, all-white schools close to home to go to an inferior and neglected all-black school miles away.

Of course I don’t think it would have been done without turmoil. I don’t know whether or not that turmoil would have reached the level of civil war but it couldn’t have been any worse. On the other hand, the courts continuing to push in the consistant direction of ending slavery would have had some effect. I have read many essays by southerners, for example in the college text Great Issues in American History, on the evil effects of slavery on both slaves and owners. I think constant pressure would have had some effect in ending the practice sooner, and possibly without killing, what was it? 600000 or so.

Um… huh?

Your original point was about the ending of slavery – before the 13th, 14th, and 15th amendments were passed. There was no “separate but equal” requirement in those days. Are you suggesting the courts had a duty to enforce racial equality in the law later on? I agree with you.

I don’t remember too many bussing issues in 1855. Make up your mind - what period are you talking about?

Sure. And the basic disposition of the case rests on standing. But Taney goes on to find that Congress has no power to forbid slavery everywhere because to do so would deny slave owners their “due process rights” as regards their property.

Hello, substantive due process!

The point, my dear sir, is whether or not to allow the dead hand of what people thought a couple of centuries ago to determine our actions today.

And those who were of your persuasion in interpretation howled long and loudly about Brown v. Board of Education. The 13th, 14th, and 15th. didn’t apply; original intent; courts making law and all such other blather.

This discussion is absolutely pointless. You are stuck on narrow legalese and it seems you will remain so.