The Constitution: Purpose and Proper Interpretation

Great Debates
1

This thread grows out of some concepts being batted around in the threads on Justice Scalia and the Indiana Voter ID law.

I wanted to unhijack those threads by throwing into here the debate over what we should do when interpreting our Constitution. Let me post one starting comment from the other threads:

This comes about from trying to establish how to interpret the words of the Constitution. At issue is Justice Scalia’s approach of looking to the meaning the words had when inserted into the document, and not varying from that meaning, though such meaning can be applied to present-day issues.

So, to start us off, I will address this question from Mr. Parker thusly:

No, I do not agree that the purpose of a written Constitution is to constrain future actions of government. I believe the purpose of a written Constitution is to have set on paper the exact plan of government to be used in the “present” (and if you will, “immediate future”). Why on paper? Because the colonists had learned to their sadness that, when the mechanism for determining what is the plan of government is not agreed to in advance, and set forth for all to see, then the government can alter the fundamental compact of government and act in unpredicatble ways. So the colonists aren’t setting the Constitution of 1787 (or for that matter, the Articles of Confederation) down on paper in order to constrain what will happen in the “future,” but rather to constrain what will happen today, and tomorrow.

And, indeed, it is the fact that they were not attempting to bind the future with their document that inspired them to allow changes to be made to it. Thus, if it turns out in the future that something doesn’t work, or that new agreements have to be made, you can accomplish that. Look at the Eleventh and Twelfth Amendments - they embody that very concept. Ooops! That didn’t go quite as we planned! Do over!!!

Now, I do not mean to insist on this basis that the Constitution’s words should not be subject to re-interpretation as time goes by. But it seems to me that anyone who wants to assert that such re-interpretation should occur cannot point to the framers and say, “These people expected this document to last for years and years, and, thus, intended it to be flexible as needed without going through the process of amending it.”

Your thoughts, please.

2

The Constitution was created not to constrain but to empower national government – the feeble government of the Articles of Confederation having proved so unsatisfactory. The Bill of Rights was an afterthought, added on to allay fears.

3

Change “the purpose” to “a key purpose” and “future” to “the” in that quote from RP, and I’m on board. Clearly, a large part of the Constitution is there to tell us some operational details of the government (when elections will be held, how many Senator there are, etc.) and those can’t really be considered constraints in the sense that “Congress shall make no law…” is a constraint.

4

The US Constitution was written to specifically set out what the Federal Government had the power to do, and how it would do it. It is a document that SHOULD be used to constrain government, in the sense that if it isn’t in the document, the FEDERAL government should not be involved in it.

This is where nutcases like myself start talking about nuking the Federal Dept. of Education. We are not anti-education, we just do not think the Feds have any Right to monkey around in that area. Let the States deal with it instead.

Sadly, the Commerce Clause has been used and abused to expand the scope of the Federal government’s involvement in our lives.

Babbling - sorry. Again - the Constitution should be used to show what the Federal Government is allowed to do. If it is not spelled out, they don’t get to play in that particular sandbox.

5

Well, that’s an odd way to spin it. The Constitution constrains the federal government less than the Articles of Confederation did, but constrain it it does.

6

First, let me commend friend DS, Esq. for this thread. Too often in the GD we are presented with topics that are conducive to rancor and bitter argument. It is good to have a subject that promotes cheerful discourse and a harmonious exchange of ideas.

I’m not at all sure we can say that the Constitution has any identifiable purpose, as such, beyond the obvious: that is, as an instrument and milestone of the evolution of human progress and liberty. The chief source of its value lies in that it was designed by a committee. many of whom did not trust each other any further than one could throw another. (A new idea is broached, and Thom Jefferson instantly thinks “How is that little bitch Al Hamilton gonna use this to screw me…”)

It could be fairly said that the Constitution is something of a failure, if we accept the obvious fact that the only valid purpose would be the promotion of liberty and equality in mankind. (Of course that obvious, which is why I am not about to explain it.) And if we note that many of the rock-solid rights and guarantees therein were denied to so many for so long.

But it so full of checks, balances, and trap doors that the wonder is that it functions at all, never mind very well. The upside of that is that it makes it more difficult for any one bloc of power to seize control. The downside, of course, is that it tends to scatter energy rather than focus it, it establishes co-equal branches of government, often at odds with each other. A democracy tends not to be very efficient, let us be grateful.

For someone who, like myself, leans left of center, the purpose of the Constitution is two fold: to promote the advance of human progress, and to provide the mechanisms for the people’s will to be made manifest. The correct interpretation is that which most advances those goals. The odious, foul, and unacceptable misuse of the Constitution is that which hinders or obstructs such progress.

7

I view constitutions generally a bit different than our constitution in the specific.

I view our constitution as a contractual agreement between sovereign states, that as part of the contract creates a separate entity whose actions are also limited and enumerated based on the text of the contract itself.

I think the only proper way to interpret the Constitution has to start with that understanding of it.

8

That is known as the “Confederate theory” of the Constitution and has been discredited ever since a test case concluding in 1865. Remember, it says, “We the People,” not, “We the States.”

9

Nitpick: Jefferson was not at the Constitutional Convention. (He was serving as ambassador to France at the time, I believe.)

10

Just a note of history here: Jefferson was serving as ambassador to France when the Constitution was drafted and ratified. Yes, he corresponded with some of the Framers, but he really can’t be considered a Framer, nor was he even a mere ratifier. To be sure, he had much to say about the Constitution during his presidency and afterwards. But so have most presidents.

Washington, yes, a Framer. Jefferson, no.

11

Are we talking conceptually about written constitutions, or about a specific one? I’m not sure much can be said about the either.

  1. Whose purpose are we talking about? The Framers (who merely drafted the document. It had no legal effect until it was ratified by a much larger group of people, many of whom probably didn’t agree on much)? The ratifiers (who gave it legal effect)? The people, generally, some of whom might have understood it differently from the other two groups. See, http://boards.straightdope.com/sdmb/showthread.php?p=9376199&postcount=8

  2. The purpose of the document, to the extent it’s relevant is found here:

Preamble | U.S. Constitution | US Law | LII / Legal Information Institute

I don’t see anything about constraining there.

  1. Why do we need to limit ourselves to one purpose? If we look at the Constitution as a solution to a problem, the problem was that the federal government was too weak under the Articles of Confederation. Wasn’t the purpose to solve that problem, while avoiding a monarchy? I mean, if the purpose of the Constitution was to restrain the federal government, the Articles did a much better job, right?
12

That’s completely bogus, the people who signed the Constitution did so as representatives of the States.

Federalism is alive and well, to say the Civil War ended federalism is ludicrous. You can’t have federalism without sovereign states.

The only thing the Civil War settled was the issue of what happens when there are disagreements between individual states and the union of states at large. I feel that the Confederates were in the wrong, based on the text of the Constitution, and of course even if they hadn’t been martial force will always prevail over the written word.

I’m not implying that the constitution isn’t a social contract as well–the basis of any government, whether it be written down or not, is a “social contract.”

But in the United States, a fundamental concept of our constitution has always been that the constitution is a contract between the states, within that contract are some guidelines as to how states will behave, and as to how the suprastate entity (the Federal government) will behave.

If the Constitution isn’t a contract between the states, then why do the states have to consent to textual changes? :dubious:

Why is it that states have to consent to such changes, and that such changes aren’t done based on what “the people” think?

13

Yes.

How does one secure the blessings of liberty without restraining the government?

And anarchy would do that even better. Let’s say the purpose was to define the structure and operation of our federal government, and to define the authority that we, the people (and the states), are willing to turn over to it. That’s a constraint. The key, of course, is to strike the best balance between freedom and anarchy.

14

A fair point. But:

  1. if you’re going to define restraint that broadly, I’m not sure it’s a helpful term anymore.

  2. The *purpose * is to secure blessings of liberty; the method of getting it might be called a restraint, depending on what you mean by that term. I’m not sure that makes a difference either, but let’s try to talk about the same thing. :wink:

Ok (and I think I agree with this). But how does that help us answer questions about constitutional interpretation?

15

The people, and the states, can do anything that is not expressly forbidden. The federal government can’t do anything that is not expressly allowed.

It’s our contract between the people (and states) and the feds.

16

I’m more familiar with the Canadian constitution, having grown up and gone to school there. It’s different in style and substance than the US version. I’ll answer in general terms, though.

I’ve always seen constitutions as having two purposes:

One, they set out the rights and freedoms that the people (not just citizens) are inherently entitled to. This isn’t to grant rights, or to make them up, but to make a statement of fundamental liberties everyone should have. Like saying “I love you” in a marriage, it doesn’t generate anything but recognition and good will; everybody involved should already understand the expressed sentiment to be true. In the case of a charter of rights for a society, there are multiple ideas expressed and multiple members in the family, so it helps clear things up and establish an agreed common reference for inevitable conflict.

Two, constitutions describe how the government will work. Individual laws are subject to vote and repeal, change and public whim, but the system itself is established from the get-go. If these ground rules themselves were subject to popular vote every election cycle, they’d rapidly be distorted to suit a majority or a momentary benefit.

These are both basic things that you don’t expect to change very much. The basic, fundamental rights of the human should be fairly durable, and you should have a reasonably sensible system of government worked out at the beginning. So the constitution shouldn’t be something you can change easily, on a whim. A single party or leader shouldn’t have the power to make changes to suit political goals.

Of course, ideas about human rights and systems of government do evolve, and the ground rules that worked well two or three centuries ago may not have been written to anticipate the kind of society that we now live in. So changes should be possible, though not trivially easy.

Another key aspect of a constitution is that it should be general in nature. It doesn’t contain specific laws regarding specific actions, but rather principles to be followed. It says “all persons are equal before the law”, but it doesn’t say “men and women shall both pay the same fines for speeding”. Such a statement (or a collection of them) risks leaving out important cases, where the general statement allows laws to be made to match the principle expressed. A constitution also doesn’t say “selling cannabis is illegal” – that’s the kind of law that needs to be passed or repealed to deal with a specific problem of a specific time, or with cultural ideas, or other ephemeral issues, and the constitution should be general enough, and inconvenient enough to amend, that such things stay out of it. They’re dealt with by the legislature.

A well-written constitution:

  • empowers a society to govern itself,
  • creates an accountable, effective government to do, on behalf of the broader society, the things that are best done collectively,
  • facilitates the co-existence of a diverse society whose constituent elements may have inherent differences of many kinds, and in particular prevents the simple numerical domination of minority elements,
  • is lasting, but capable of growing up with is society,
  • serves as a meaningful reference to vet the actions of a government or the state of the society against the intended ideal, and
  • provides the playing field on which law and governance, for good or bad and whatever the goals, happen.

When it comes to interpreting the constitution, the key is recognizing that it, in itself, isn’t the point. Like the rules of the road, it’s valuable because it helps us live and work together, and makes for a better, safer, more effective life. The authors weren’t gods, so there’s no point in any sort of fundamentalism that insists on holding to the precise letter of the centuries-outmoded language or the conjectured intent within the life setting of the long-dead composer. If the constitution was written before women were considered persons, it may still make sense to apply its enumeration of rights of the person to women. The general principle, core to the document, that people are free, is served by recognizing those freedoms broadly, and those freedoms belong even to people who may have been neglected (or even actively excluded) by the authors. The authors, after all, were just people, and the constitution is the ground rules, which must grow and adapt when the society moves onto new ground.

I’ll just add, as a closing comment, that I kind of like the Dutch word for ‘constitution’: grondwet, which brings up images of both “ground rules” and “law of the land”.

17

Sounds like a recognition that much of the country is below sea level and it rains a lot. :slight_smile:

18

If that’s so clear from the fact of a constitution, why did we need two amendments to spell it out? It doesn’t follow from your contract theory, for example. There can be all kinds of implied terms in contracts. And what about ambiguous provisions. Should we apply contra proferentem? Contra proferentem - Wikipedia

I’m not sure how this follows from what you said. Can you elaborate?

So contract law should apply? I don’t think you want that. If not, how does this additional fact add anything? BTW, the feds didn’t exist to sign the contract, so that presents a metaphysical problem.

19

The ground is certainly often wet around here. :wink: But in this constitutional monarchy, they actually do have the power to control the sea. Attribute it to a well-written constitution :wink:

20

Much better stated than my ramblings.