I was not assuming we were starting from scratch. The constitution exists, as do the 9th and 10th amendments.
If contract carries too much baggage, then let’s just say it’s an agreement. The federal government is a creation of the several states. The states agree to form a union provided the federal government is structured per the constitution and limits itself to actions expressly allowed in the constitution, and allows the states, and the people, to act in areas that are not expressly forbidden.
It’s definitely a document that required assent before it became valid. I think the exercise of calling it one thing or another will give us both a headache. For example, what principles are you applying to interpret the agreement?
Circle the part where the agreement says “expressly.”
I’m not sure how to structure my response so as to respond to everyone’s thoughts. So I’ll just talk generally about what I see as a few critical points.
Let’s consider the difference between our system of a written constitution and a system with no written constitution. Without a written constitution–perhaps with just a constitutional convention that established rules for a legislature–the framers could have passed a bunch of statutes setting up all the other facets of government. Rules setting up the elections of a President, setting the bounds of executive power, habeas corpus, free speech, rules of search and seizure, and all the rest. That’s roughly what you had in England. Without a written constitution, these rules can be overruled by the legislature at any time. The difference of having a written Constitution is almost entirely in limiting what a bare majority of legislators can decide to do–requiring additional support and procedures for amendment above and beyond those required for legislation (in part by assigning powers to other branches that can’t be changed through legislation and in part by making amendment more difficult than mere legislation).
To be clear, the Constitution of course includes limits on (or limited delegations of, if you prefer) executive and judicial power. But to the extent that these arose out of a majority opinion of those at the convention, they could have been limits in the form of normal laws. The point of enshrining them in a kind of super-statute is to prevent future change–when the current majority no longer exists–on the whim of a future majority.
Short version: how do we explain the decision to make the Fourth Amendment into a constitutional limit rather than a statute? I don’t see any plausible explanation other than that the Constitution is harder to change than a statute. The purpose of putting the Fourth Amendment in the Constitution, as opposed to in a statute, is to further hinder future majorities from changing it.
I think that this notion of the Constitution as a check on future governments has implications for our jurisprudence, but I’ll leave it as this first premise for now.
[Sadly, I’m a little busy this week. So while this thread is of enormous interest to me, I might not be able to post as often as I like. But I’ll try to get back to respond to some particulars.]
Glad you brought this up! It’s the whole point to the thread, really.
The genesis of this thread is an argument about how to interpret the document. Do we interpret it according to its plain meaning? Do we interpret it according to the meaning the words had back when added? Do we re-interpret it as we go, as needed for our society to work well?
To decide which is the best way to interpret the document, one person asserted that we should accept the concept that the document was an attempt to predict future disputes and solve them in advance. Such a forward thinking document would, he seems to feel (if I understand correctly), be best interpreted not by a static view of the language, but by looking at the language as it exists presently. This allows the concepts of the document to be more applicable to today’s world.
If I am the “one person” being referred to, this isn’t exactly what I was trying to express. I’m not arguing for a living Constitution.
I’m saying that if the framers were trying to embed principles that would be enforceable against future majorities, we should cut them a little slack in looking at the intended effect of those principles since no one can predict the future with great precision.
An uncontroversial example of this is First Amendment law. We don’t interpret it to not include TV’s and radios simply because they are not presses. Instead, we ask what the underlying principle is. And I’m saying that when we ask that question (as even Scalia concedes we must ask in some cases), we ought to ask it keeping in mind that the framers intended these principles to apply to an unknown future.
This is not an argument for the Eighth Amendment prohibiting the death penalty, for example. In that case, the framers needn’t have predicted the future to determine whether they wanted to allow the death penalty according to their principles. I think there are interesting arguments for why some principles might be applied in ways that would surprise their creators, but I’m not arguing that here.
The Constitution has been interpreted right out of existence by the judicial branch. Some examples:
Anchor Babies: In Ark, there was evidence that the Fourteenth Amendment’s “and subject to the jurisdiction thereof” was never meant to apply to people in the United States illegally, but rather to the peculiar citizen status of Indians on reservations. The Supreme Court says, “So what? We want to interpret it out of the original context.”
Interstate Commerce Clause: thanks to the “switch in time saves nine” from FDR’s court-packing scheme, the ICC is now a carte blanche for the feds to control whatever they want.
State sovereignty: Supposedly decided by the Civil War. WTF?! I read the Reconstruction Amendments and not one repealed the Tenth Amendment. At best, they forced incorporation of Amendments 1-8 at the state level - or rather, the ones that the SCOTUS that happens to be sitting wishes to incorporate.
Article V: A little research on the matter of Constitutional Conventions shows that the states have repeatedly met the criteria under Article V. Of course, Congress refuses to hold the convention despite being obligated to do so. SCOTUS’s response? It’s a political question so Congress in in control. WTF?! They’re the ones VIOLATING THE CONSTITUTION! It reminds me of the time my union told me that the district could decide what grievences were filed against it.
Dole v S.D. (South Dakota not Straight Dope): Can the Feds violate state sovereignty? Sure, as long as they pay to do it.
I know any of the laywers here can tear apart each case and explain in excruciating detail how all of these examples really are constitutional. My point is that the Constitution was written to create a federation of states with a strong central government and any interpretation that pulls us away from that model destroys what the Constitution should be. Those of you that argue for subduing state rights in favor of a controlling federal government - fantastic. Then do what we did when we found that the Articles of Confederation didn’t work for the government we wanted, i.e. use the existing document as a model, keep what’s good and throw out what’s bad, and rewrite the fucker!
Just don’t count on Congress letting you, even if you get 34 states to write identical letters asking for a convention.
Well, yeah. It’s an attempt to make rules, certainly.
I’m not sure the second quoted section follows from the rather tautologous first one. Not that I disagree with his offered approach, but the idea that constitutions are rules (or that the U.S. Constitution is) seems to beg the question of interpretive technique.
Ok, well, in that case, just what method do you propose for cutting them that slack?
Justice Scalia is being excoriated in the other thread for application of the idea that words have a meaning when they are written, and that’s the meaning that you should attach to them 200 years later as your starting point for interpretation (whether or not that’s what the justice actually thinks/writes is irrelevant; that’s what is being dissed). I understood your assertions (and our discussion in the Eighth Amendment thread) to involve your disagreement with this idea. What, then, standard for interpretation do you propose should be used, and how is that butressed by your view of what a Constitution is?
Isn’t choosing a particular moment in time to close the books on a definition a bit arbitrary?
How do you choose that moment in time – when the last of the Framers were involved in politics or judicial decisions? When the last of their contemporaries was?
Can you rationalize the recognition that definitions and interpretations had evolved prior to that arbitrary moment, yet not recognize further evolution?
The process of drafting and ratifying the Constitution only took 3 years. If there is any evidence that legal concepts changed appreciably during that time, then your concern would be valid. Is there?
If you’ll look, I noted how my premise is actually a powerful argument, in part, for Scalia’s philosophy because it privileges the frame of pre-existing majorities. I raised the thought when I did because we were discussing amendment to end a current abuse, which I pointed out was impossible if that practice is endorsed by the current majority. This suggests that the amendment process is actually about future majorities.
The standard of interpretation I’m defending is one that focuses on the original principles underlying many of the provisions of the Constitution (but obviously not all). That too is fairly uncontroversial, I think.
Specifically, I’m suggesting that in asking what principle the framers were trying to embody with a particular provision that we need to keep in mind their intention to apply it to circumstances unknown to them. How does that change the interpretation? I think it affects how we construct the principles. It counsels for constructing them a little more broadly, all else being equal. In the First Amendment example, it meant constructing the principle to have something to do with the marketplace of ideas, even though that is nowhere mentioned in the Amendment. Not because we now think that a marketplace of ideas is important and they did not, but because we have good reasons to believe that was the general principle they were driving at. In the Fourth Amendment it means construing the underlying principle of privacy to generally limit government in the home (supporting Kyllo, perhaps).
Scalia would disagree, I think, in that this standard of interpretation must necessarily look beyond textual meaning. But despite having read his own defense of how textualism can produce justiciable principles like the ones underlying the First Amendment, I’m not convinced that you can actually do so without looking at intent.
One of the criticisms of textualism is that it selects an arbitrary date to use as a basis. Are you suggesting that there was a complete three-year lull in jurisprudence? That this lull was due to everyone deciding that things were ‘right’ and no more analysis was needed? That the concept of, say, proximate cause, which changed before the magic date, should have stopped evolving?
How are you selecting the date? Are you sure that 1787 is the right date to pick? What about Marbury? That came afterwards, no? Are you saying the Supreme Court is not the final arbiter of what is/isn’t Constitutional?
Textualism is an inherently weak philosophic system, one that relies on a set of artificial presumptions and make-believe to try and retain a semblance of coherence. Whether or not legal concepts changed appreciably during that time has nothing to do with these weaknesses—consider the question of what it would mean to you if some concepts did change during that time.
I’m sorry if I’m mischaracterizing your post, but it made no sense to me (which, given the high caliber of your posts in general, probably means I missed something big).
So, then, Richard, how does your approach apply in a very real world application? Let’s throw ourselves on the land mine, here: How, absent any reference to Miller (which is very questionable precedent anyway, given the procedural history of the case), would you interpret the Second Amendment, as applied to a federal law that restricted the right of individuals to own, let’s say, automatic rifles? Shoulder-mounted rocket launchers? Saturday night specials?
This would give us a concrete example so that we could see how your approach would work (and it happens to be somewhat timely, given that they haven’t issued the decision on the case they took, yet).
Expand upon this, please. Offer some concrete examples to support your assertion that such things evolved as to meaning. Let’s see if we can use them to establish a rubric for discussing meaning of phrases over time.
No. I’m asking you how much the legal concepts embedded in the constitution changed from 1786-1789? If there was some significant changes, what were they? For instance, did “cruel and unusual” mean something in 1789 that it didn’t in 1786?
I’m not picking a date, but a time period. From start to finish.
They are, now, but wouldn’t it be better to explicitly state that in the Constitution? Then we needn’t have rangled over it.
I’m just not seeing what is arbitrary about the time period of conception and ratification.
If I wasn’t clear, I’m not advocating a interpretive approach from the bottom up. I’m suggesting that there is a limited interpretive consequence to the premise that Constitutional limits are predictive. It might be better to think of it as a canon of Constitutional construction.
In the real world, the answer to your question depends on doctrine, historical evidence, structural concerns, the historical meaning of the terms, and everything that went into the thousands of pages of briefs. I’m just saying that–again more a matter of a canon of Constitutional construction-- all else being equal, when construing the principle, we should construe it consistently with an intention to apply to unknown circumstances.
So in the case of the Second Amendment (which I’m highly reluctant to discuss because it is sure to hijack this thread, but since you’re the OP…), we should not construe the underlying principles in a way only makes sense in the immediate historical context. The framers were much more likely to be asking, “what’s next?” Maybe that lends credence the briefs arguing that the clause was about ensuring that as slavery became more unpopular, slave revolts could still be put down by gun owners. I would have to go through the arguments to say precisely how this canon would affect them. And it may or may not affect the end result, but I think it should probably be in there if you buy the premise the the Constitution is meant to be forward-looking.
Due process, speech, property… Are you suggesting that the terms and phrases used in the drafting of the constitution were unchanged from the 1500s until then?
It’s a nice date to make you all warm and fuzzy inside. I loves me some July 4th. It’s not a random year, but choosing the day of signing, the day Jefferson passed, the day it went out for ratification, the day the Liberty Bell cracked, the day the Colbert Report premiered… whenever … you’re choosing a point in a continuum and saying THERE, *THERE *is where all judicial evolution ends.
Why is this apparent stagnation so important to you? If things went three or four centuries I guess you could make an argument that things had been pretty ironed out by that point. But three years?
Ok, a time period then. How does that change things? Now you have two arbitrary dates to pick, the beginning (what, Washington’s birthday? The calling of the Constitutional Convention?) and the end date to close the books on evolution.
So a patch of Scalias on the court should abdicate their Constitutional authority? Isn’t that what strict textualism entails?
