I know the attorneys would say stare decisis (sp?) but that didn’t seem to be true in interpreting the ICC after the FDR court-packing scheme (A switch in time saves nine)
Legislative intent? It is well established that Sen. Howard who wrote the citizenship clause of the Fourteenth Amendment made it very clear that citizenship would not be applied to Indians or children of foreign nationals. The first was upheld by Elk v. Wilkins but completely disregarded in US v Wong Kim Ark
The Constitution? I’m sure that anyone could pull out many decisions that were contrary to the Constitution. My favorite? Dole v South Dakota which basically lets the Feds run roughshod over the Tenth Amendment as long as it’s legislation by pursestrings. Or the Kelo decision which changed “public use” into “whoever can pay the most in property taxes”. I’m sure the Demos will refer to the second part of Bush v. Gore here too.
So what standards does SCOTUS use to make sure its decision is legally right, or to be cynical, are the decisions of SCOTUS legally right even if they use a magic 8-ball to get the decision?
The Constitution, Legislative Intent, and a sense of justice, among other things. How much each factor weighs on each justice is a separate issue, as is the issue of which is the best interpretation. AFAIK, we’re stuck with whatever decision is handed down and if we don’t like it, we change the Constitution to get our way.
I now wait for the lawyers to embarrass me with their fancy-schmancy law school education.
ETA- Stare decicis too! If A vs B is similar to Y vs Z, we try to stay consistent with previous rulings. The thing is, though, the SC usually isn’t interested in cases that stare decisis gives the easy answer to. They like to either take on new issues or ones that decisis covers but they want to change or put a spin on.
Given that the Supreme Court has the power of determining whether or not a law or action is unconstitutional, it’s decisions are, by force of law, the final word, regardless of what standard is used.
I’m a cynic about it. The supreme court does base its decisions on a bunch of things-precedent, policy, facts, text, and history (often, in different balances in different cases) but at the end of the day, it’s hard to even be clear in detail about what it should base its decisions on (in hard cases–nobody disputes how many cases ought to come out)–but in the hard cases where interpretation is essential, where there is no definitive precedent to follow, and, because it’s the supreme court, whatever interpretation they pick becomes law, I think you’d have a hard time getting consensus even on what the court ought to do.
That being said, it’s important to remember the Supreme Court isn’t a unitary body–there are nine justices, and sometimes you get four or five different written opinions, concurrences, and dissents–some justices think text is more important, some think precedent is more important, and some think policy is more important.
So at its base what does the Supreme Court have to base its decisionmaking on? Five votes. All a priori principles of what a decision should be based on come second to the fact that the court’s opinion has to combine text, history, precedent, facts, and policy in a way that gets five votes. Opinions in hard cases are (my cynical mind contends) drafted in a way more focused on getting five, rather than on following any one principle of jurisprudence.
Welcome to the dark side. This is why many people complain about judicial activism. Instead of reading the plain words of the Constitution, or applying the terms as they were intended, they engage in a juggling act which allows them to reach the desired result.
All of the examples that you cited are excellent for illustrating this…
The thing people fail to understand is the US Constitution isn’t what IT says. It is what the SCOTUS says it is.
And since the SCOTUS is 9 different people that varies from time to time.
Most people would say this is good, because it the SCOTUS allows the US Constitution to be, what has been termed “A living document.”
If you define everything it quickly becomes bloated. The Alabama State Constitution has like 800 amendments when I last looked.
But by keeping ideas somewhat vauge the court is able to interpret the constitution so it fits with the ideas of the day.
For instance, we almost passed an admendment to allow government to regulate child labour. Now it seems almost laughable today that the the federal and state government WOULDN’T have that right. But at one time the SCOTUS restricted it.
The SCOTUS is NOT nine impartial justices. These are NINE people that have already made up their minds on each issue BUT are willing to change their mind IF you provide a strong enough argument for that change.
Very true, with one proviso–in many cases, it’s not the COURT that keeps the constitution vague–it’s the text of the constitution itself.
There’s no reason the U.S. couldn’t have a constitution like Alabama’s or (shudder) California’s. It could provide for exactly how each issue should be resolved, in detail. If the constitution were that clear, and there was only one possible textual interpretation that resolved every case, we wouldn’t need to put our best judges on the court–a traffic court judge from Newark, NJ could do an equally good job.
But in almost every case, it isn’t that clear, and the U.S. constitution doesn’t resolve cases. It establishes principles and rules that must be interpreted to determine how any given case comes out. For that, we need judges who will interpret what the constitution means. As I note in my previous post, there are different sources to draw from, and reasonable questions as to what weight they should get. But it’s unreasonable to simply say the Supreme Court should just be
–
because there is no one clear answer as to what the “plain words” mean in the context of hard cases, or one clear answer as to the intent.
(for example, other posters point to the senator who drafted the Fourteenth Amendment. But why should his interpretation dominate? One could argue it should be the voters/delegates who approved the amendment (who are the people who give it legal force), or other ways of interpreting it–I don’t want to debate which to use, but want to point out forcefully that there are several to choose from)
There is an amendment process to change the constitution to fit with “the ideas of the day”. It is much better to have a sea change when 2/3rd of each House of Congress and 3/4ths of the states agree, rather than have 5 unelected Judges serving life terms passing down dictates to 300 million people.
I hate to play junior mod, but this is the sort of post that belongs in GD. Suffice it to say that there are several schools of thought as to how to apply the Constitution to new developments – and you’re asserting one while Markxxx was explicating another. Not a problem to discuss them, but debating which is “right” is a GD question. No offense intended.
Legislative intent or framers intent is a very dangerous field to go to IMO be in the constitutional field, or a regular statute. Basically the court is putting ITS interpretation of of what the legislature intended, clearly usurping the legislatures role. What the text says is what it should mean.
Original intent and originalism (separate but related schools of thought) are becoming less and less relevant today. Even the more conservative Justices, such as Scalia, don’t hold with it anymore; they’re texualists now.
The big problem with original intent is that you can’t just look at the intent of the author, because the lesgislature doesn’t vote on the intent of the bill’s sponsor. They vote on the text. It doesn’t matter what the sponsor of the bill thinks about his pet law, it matters what he can get passed in its text.
So Senator Howard’s feelings about the children of foreign nationals are immaterial, since he is not the US Congress. Very few laws have passed with a universal rationale over their scope and application, so there are very few useful applications for the original intent and originalism theories.
So we should have had a constitutional amendment to allow the freedom to publish stuff on the Internet? After all, there’s nothing about the Internet in the Constitution at all. The word simply isn’t there.
Textualism is a group of judicial interpretation theories that hold that the four corners of the enactment should settle, where it is able to, the meaning of that enactment. It thus deprecates such sources of rationes decidendi as legislative intent, giving effect to the overall legislative program (which might be seen as legislative intent writ large), and notions of justice. (This is not to say that textualist seek to frustrate these things, only that in the face of an unambiguous statute, textualists will not repair to these areas to reach an alternative result.) Where the statute is ambiguous on its face, then these additional sources will need to be consulted.
“Original intent,” then, is clearly not a textualist mode of interpretation, relying as it does on something extra-statutory: the unarticulated intent of the enacting legislative body.
Originalism, a mode of interpretation most closely associated with Antonin Scalia, and not, paceRNATB, spurned by him, holds that an enactment should be interpreted according to the “historical plain meaning” of the statute. That is, the originalist inquires as to what an ordinary person living in the relevant society at the time of the statute’s passage would understand the contents of the statute to mean. Because originalism purports not to be based on extra-statutory facts, it is a textualist philosophy.
These are, I think, pretty charitable descriptions of the schools of thought. There are significant criticisms of the textualist program which I have omitted as they would take us pretty far afield of the OP and even the post I am directing these remarks at. Nevertheless, hopefully this makes some of the terminology a little clearer.
At the risk of falling into a trap, no. I don’t see a need for an amendment for freedom to publish on the Internet. The 1st amendment does not specify printed paper only, and I think that if the founders were given a glimpse of what the Internet entailed, they wouldn’t see a difference between the two.
The first amendment specifies speech, which at its core encompasses only spoken language. It’s only through the machinations of the Supreme Court that we have the right to write whatever we want as well as say it.
Note that one needs to be very careful when considering schools of textualism, originalism, etc. They have been co-opted by the Right Wing Marketing Department (not a unique trait of the right, the Left Wing has a marketing department too). If you’ve ever dealt with a marketing department on any subject, you know that oversimplification, buzzwordification, smokescreenification, and a whole host of other -ications come into play, along with name calling, intentional misleading, unsupported generalizations, and so on.
An originalist or what have you is no less an activist judge, no more objective, and keeps no truer to principals of justice or the Constitution than their demonized opponents.
This does not mean that the schools’ criticisms of other schools is not valid, just that understanding the pros and cons of the arguments and the schools themselves should be done with an awareness of the advertising and marketing that goes into the debate.
Hell, the Constitution doesn’t even explicitly give Federal judges the right to rule upon the constitutionality of statutes. But they’ve been doing it since Marbury v. Madison, and far more often than not it’s been a good thing for the preservation of liberty. The Supreme Court decides based upon the facts, the law, precedent, history… and the individualized and sometimes idiosyncratic views of nine very smart people, who are human and thus as flawed as any of us. By the time a case reaches them, the easy decisions have usually been made at a lower level. SCOTUS gets the hard cases, and sometimes there’s very little to guide them other than their own best judgment as to what should be done.
So then you support the idea of judges interpreting the Constitution with an eye towards the things we deal with today as well as the goals of the writers.
Absolutely not true. Newspapers, broadsheets, books, pamphlets, letters, and all sorts of written communications were just as basic a part of the world of the framers as oral speech. Any examination of the process shows that they meant the first amendment to apply to written speech exactly as much as they did to spoken language.
Except for a very few basic issues like speech applying to all forms of speech, the process of writing the Constitution was a series of compromises. There is no such thing as “the Founding Fathers said” or “meant.” They disagreed upon almost every issue brought before them, from the form and composition of the government to what the federal government could or could not do. We can’t know what their goals were because they had no set goals upon which all could agree. Their intent, as far as one can be discerned, was to set a government in place and let it take form through the individuals who comprised it. The rise of political parties, not mentioned and generally abhorred by the framers, occurred within the term of the first president and wound up changing the “intent” that one of the first amendments after the Bill of Rights (#12) was needed to accommodate this.
They didn’t even foresee the Supreme Court taking on the role of interpreting the constitutionality of laws, something that sent some into fits of apoplexy.
If the framers during their lifetimes didn’t imagine or approve the way that the U.S. government evolved, how can it possibly be argued that we today are to read their minds to apply their “intent” to rule on what “should” occur? It cannot be done. It has never been done at any time in the history of the country. It will not be possible in the future.
You can also argue that the entire history of the Supreme Court has been a process of one generation overturning the rulings of previous generations. And this process is mostly one way. It almost never happens that major rulings are changed back so that they correspond to the rulings of the past. The Constitution has historically been a living document at every moment of the country’s history, changed - sometimes belatedly and kicking and screaming - to keep up with the changes in the country itself.
Historically there is no argument with this. There has been ideological discussion of whether this is the right course to take, but that mostly is in the same league as whether cars have been good or bad for our society. Argue all you want but the cars aren’t going away and our country has been shaped around that fact. So too with the political and judicial systems.
