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Monday, October 3, 2011

Judicial Interpretation (August 30, 2011)

This is actually from an e-mail to my sister.  Just wanted to share it here.


You asked me what method of Constitutional Interpretation I adhere to.  As this is something I have never thought out, I wish to do so now, so please bear with me if I seem to wander and meander a bit.

It seems to me that there are two main methods of Constitutional Interpretation: originalism and “Living Document”.  What I propose to do is define each and then explain my views.

First, “Living Document”.  This method of interpretation basically says that the Constitution is a document that needs to adapt to changing times, which is fine.  However, living document adherents often turn the Constitution into a jumble of meaningless noises.  Often, they say that whatever the prevailing view is on a particular topic is how the Constitution should be interpreted.  This is farcical nonsense on its face.  By removing any meaning from the words, the Constitution becomes meaningless and nothing more than a “scrap of paper”.  Words have meaning and that meaning does in fact limit what can be done.

Second, literalism.  Literalism basically says that the text of the Constitution should be interpreted according to the words and/or the intent of the Founding Fathers.  This view does not allow for things that change over time.  The other problem is that since the Constitution was the product of compromise (3/5 Compromise, Great Compromise, etc.) there is no one view or intent that can be seen as prevailing.  Look at the immediate aftermath of the Constitution.  Almost as soon as it was ratified, different parties came into being that interpreted the Constitution differently.  As for the original words, the fact is that like it or not, the meanings of word change over time.  So how do we judge the words, according to today’s meaning or according to the meanings at the time?  If you go with today’s meanings, then you have drifted away from what the Founders meant.  If you stick with the original meaning, then you are stuck in the late 18th century, which is a whole different problem.

I would discard both of these main views.  I am sure there are others, but since I don’t know them offhand, I won’t worry with them right now.

My basic view of the Constitution pretty much blends parts from both of these.  As the Literalists say, words have meanings and these meanings limit the government.  The shifting views and morals at any given time do not determine the meaning of the Constitution, although the shifting views do need to be taken into account in certain circumstances.  For example, “cruel and unusual punishment” is a vague term that has little meaning on its own.  What is “cruel an unusual”?  That standard has changed over time and our interpretation of the meaning needs to change as well.  However, something like the First Amendment which says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” is a straightforward proposition that properly leaves little room for discretion or interpretation unless the public welfare demands limits of some sort (i.e. fighting words, yelling “Fire!” in a crowded theater, etc.).  So, basically, if the term/phrase is vague then it can properly have its meaning shift over time, whereas if the term/phrase is not vague, it should be interpreted in a stricter manner.

As for the issue of federalism, the Constitution is plain on its face that the federal government is supreme.  Witness the Supremacy clause.  There is no room for interpretation there.  All federal laws and treaties are supreme over state laws.  Now, this would seem cut and dry, except for the fact that the states are given particular powers and are guaranteed existence under the Constitution.  So, while the federal government is supreme, it cannot constitutionally be dictatorial.  The issue is further clouded by the Necessary and Proper and Interstate Commerce clauses being used almost indiscriminately to justify almost anything being passed.  What is needed is a balance where the federal government is supreme, but the state governments are robust enough to enter the debate.  I think something that would help here is repealing the 17th Amendment and making the senators represent that states (as they were intended to do in the first place) by having the states appoint them.

The federal government should be smaller than it is now, but not so small that it cannot provide the people with basic needs and security.  Note that basic needs do not include TVs, cars, or other things, but do include housing, food, and clothing needed for survival.