What's your brand of constitutional interpretation?

I believe in strict Constructionism. The Amendment Process which requires a 75% majority of Congress or States, is a remarkable protection against temporary insanity, and high pressure sales.

If the Supreme Court is so Noble and above us, why are their rulings always so divided? Are They being Honest about the limits of Their Own Powers? Are they discerning Ultimate Truth in relation Accurate Translation and Interpretation of the Constitution, in relation to Circumstance? Ruling to Clarify boundaries, and limitations. Are They Forcing Issues on an unresponsive Super Majority?
All of these 5/4 splits suggest both Political Motivation and Selective Absorption of Relevant Facts and Principles. Relevance does not only need to be considered, but weighted, and Prioritized. This Requires both Conscience, and Competency.

Madison and Jefferson split with Hamilton, on the Powers of the Federal Government, and Individual Liberty. I side with Madison and Jefferson.
 
I find it interesting that traditionally religious types, Conservatives and such, are in more favor of a literal interpretation of the Constitution.

However, I am also in favor of a literal interpretation of the Consititution, strangely enough, I just have a different interpretation of what it "literally" says.

For instance, and what probably led directly to this thread, when I see the term "Provide for the General Welfare" I believe it means, literally, just that. Provide for the general welfare.

I happen to think that Health Care is included in the category of General Welfare, just like Machine Guns are included in the category "Provide for the Common Defense".

That is a literal interpretation, just not one that some people happen to agree with.

Now, the bible, on the other hand, is very open to non-literal interpretation, IMO.

The constitution does not say provide for the general welfare. It says PROMOTE the general welfare.

Since you take it literally you must now change your premise which you based that opinion on as promote does not mean provide.

Some light reading http://www.usconstitution.net/const.txt

us constitution said:
We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.

As you see they do use th word provide, but it is for the common defence (IE a military, the second ammendment).
With the talk about general welfare their role, in the constitution, is to be a cheerleader but not a player.

Wrong. Welfare means resources and safety and the ability to continue and maintain. It doesn't just speak to people's welfare. This is a sovereign they are talking about. It has land mass and borders and natural assets all to be used to maintain an advantage so that it can endure. We defend it, we farm it , we live on it. We add to it. We build on it.

You're getting the Declaration mixed in with your Constitution.

The meaning of the word "Welfare" in the Constitution is different from its current usage. The constitutional meaning of welfare is: 1. health, happiness, or prosperity; well-being. [<ME wel faren, to fare well]
 
100% wrong. It is absolutely not a "living breathing document" in any way and was never intended to be. The contrary in fact is true.
I understand this opinion, but since about 1803 no one has successfully challenged (in my knowledge) the concept of judicial review. If you'd like to see you opinion adopted into law, you're going to have to get a lot of votes or have someone make a successful agrument to SCOTUS.

It hasn't happened yet. And trying to bypass this legal standard by just declaring it to be so ..... well THAT and $5 will get you a cup of coffee.
 
No piece of paper, and certainly no set of laws is going to trump a government tht has been bought and sold, folks.

the consitution was written to give the living some means of governance, and it was written to allow each generation to modify its laws to accomodate changing reality.

Hence if we want a good set of laws we need to elect good men to oversee those laws.

Not going to happen in a world where our Supreme Court has decided tht MONEY = FREE SPEECH.

that law vitually assured us that the richest people in the land would own the government and make it a handservant to their needs at our expense.

Basically what that law did was make a mockery of the concept that we live in a DEMOCRATIC Republic.

Now it's an oligarchical Republic, much as Rome's Republic was.
 
The constitution does not say provide for the general welfare. It says PROMOTE the general welfare.

Since you take it literally you must now change your premise which you based that opinion on as promote does not mean provide.

Some light reading http://www.usconstitution.net/const.txt



As you see they do use th word provide, but it is for the common defence (IE a military, the second ammendment).
With the talk about general welfare their role, in the constitution, is to be a cheerleader but not a player.

Wrong. Welfare means resources and safety and the ability to continue and maintain. It doesn't just speak to people's welfare. This is a sovereign they are talking about. It has land mass and borders and natural assets all to be used to maintain an advantage so that it can endure. We defend it, we farm it , we live on it. We add to it. We build on it.

You're getting the Declaration mixed in with your Constitution.

The meaning of the word "Welfare" in the Constitution is different from its current usage. The constitutional meaning of welfare is: 1. health, happiness, or prosperity; well-being. [<ME wel faren, to fare well]


It is very much different than what we accept the meaning of welfare to mean today, however, your meaning is incorrect. I have no idea where you snagged it, but it is wrong. Welfare, as in general welfare is more akin to "commonwealth", which is a description of an entity with a purpose, namely a state, like Virginia, they are an association based on real estate purposed for the common good. Virginia is still a commonweath. It is concerned with statism, IOW the whole, the named sovereign.
 
The constitution is a living, breathing document. Judicial review and interpretation are necessary to apply constitutional principles to contemporary, individual cases.

100% wrong. It is absolutely not a "living breathing document" in any way and was never intended to be.

The contrary in fact is true.

The document itself provides for the ONLY way it is supposed to be subject to alteration: amendment.

The bogus claim that the Constitution is a "living breathing document" is nothing more and nothing less than a transparent way to evade such restrictions as it imposes which liberals dislike. They tend to dislike any checks on their ability to "reign." This is why (despite saying things to the contrary) liberals tend to oppose personal freedom in favor of State authority in so many varied areas of our lives.

The Constitution, PROPERLY understood (not that nonsensical "living breathing" crap), stands in their way. It frustrates their purposes and their agenda. It is for this reason that they lie and make the deliberately and obviously false claim that it is a "living breathing" document.

It most certainly is not.

Take out all the blathering about the liberals that's totally unprovable, and I agree with you.
 
Wrong. Welfare means resources and safety and the ability to continue and maintain. It doesn't just speak to people's welfare. This is a sovereign they are talking about. It has land mass and borders and natural assets all to be used to maintain an advantage so that it can endure. We defend it, we farm it , we live on it. We add to it. We build on it.

You're getting the Declaration mixed in with your Constitution.

The meaning of the word "Welfare" in the Constitution is different from its current usage. The constitutional meaning of welfare is: 1. health, happiness, or prosperity; well-being. [<ME wel faren, to fare well]


It is very much different than what we accept the meaning of welfare to mean today, however, your meaning is incorrect. I have no idea where you snagged it, but it is wrong. Welfare, as in general welfare is more akin to "commonwealth", which is a description of an entity with a purpose, namely a state, like Virginia, they are an association based on real estate purposed for the common good. Virginia is still a commonweath. It is concerned with statism, IOW the whole, the named sovereign.

I snagged it from the dictionary. A useful book, you should check it out sometimes.

commonwealth does not mean welfare.

Commonwealth :

--------------------------------------------------------------------------------
A state; a body politic consisting of a certain number of men, united, by compact or tacit agreement, under one form of government and system of laws.

--------------------------------------------------------------------------------
The whole body of people in a state; the public.

--------------------------------------------------------------------------------
Specifically, the form of government established on the death of Charles I., in 1649, which existed under Oliver Cromwell and his son Richard, ending with the abdication of the latter in 1659.
----------------------------------------------------------------------------------
Welfare:

noun

1) A state of health, happiness, and prospering: prosperity, well-being.

2) Assistance, especially money, food, and other necessities, given to the needy or dispossessed: aid, dole, handout, public assistance, relief.
 
I have many dictionaries, some very old ones. You'd be surprised how sucky the newer consumer grade ones are. The good ones are probably more than you're willing to shell out. Like $500 to start and you have to buy it its own table.

And I already explained what a commonwealth meant. And I related it to the "General Welfare".
 
My guides to the Constitution are A. Hamilton and J. Marshall, and my poster boy for it in action is Abraham Lincoln.
 
100% wrong. It is absolutely not a "living breathing document" in any way and was never intended to be. The contrary in fact is true.
I understand this opinion, but since about 1803 no one has successfully challenged (in my knowledge) the concept of judicial review. If you'd like to see you opinion adopted into law, you're going to have to get a lot of votes or have someone make a successful agrument to SCOTUS.

It hasn't happened yet. And trying to bypass this legal standard by just declaring it to be so ..... well THAT and $5 will get you a cup of coffee.

Whoa whoa whoa. This is the problem with people's view of this entire debate and part of the reason I started the thread.

Someone would be on crack to try to throw judicial review out the window. But to say that judicial review = living constitution is absolutely wrong.

Is the constitution able to change? i.e. be amended - YES. If that's how you're defining living constitution then yes. But that's not what constitutional scholars mean by the term.

We'd have a terrible constitution of we couldn't change it. Slavery, prohibition...I could go on and on..there are reasons to make changes.

But not a judge on a bench because they dont like the way a law is worded.
 
I have many dictionaries, some very old ones. You'd be surprised how sucky the newer consumer grade ones are. The good ones are probably more than you're willing to shell out. Like $500 to start and you have to buy it its own table.

And I already explained what a commonwealth meant. And I related it to the "General Welfare".

You explained what commonwealth meant to you, but that's not an accurate definition. Same with the word "welfare".

Commonwealth n.
1) The people of a nation or state; the body politic.
2) A nation or state governed by the people; a republic.
3)Commonwealth:
a)Used to refer to some U.S. states, namely, Kentucky, Massachusetts, Pennsylvania, and Virginia.
b)Used to refer to a self-governing, autonomous political unit voluntarily associated with the United States, namely, Puerto Rico and the Northern Mariana Islands.
4) often Commonwealth The Commonwealth of Nations.
5) The English state and government from the death of Charles I in 1649 to the restoration of the monarchy in 1660, including the Protectorate of 1653 to 1659.
6) Archaic. The public good; commonweal.

Welfare n.

1. a. Health, happiness, and good fortune; well-being.
b. Prosperity.
2. Welfare work.
3. a. Financial or other aid provided, especially by the government, to people in need.
b. Corporate welfare.
 
There have already been some excellent replies on this thread.
Let me add a bit for clarification. Naturally the constitution is a fluid changing document.
For instance sometime in the future we may want to amend it to prohibit the cloning of entire human beings. No doubt they will come to the point where they can clone you a new heart. But morally would we want a entire human being to be cloned to create that heart and then die in our place? Obviously not so we may find ourselves amending the constitution to prohibit that.

Obviously the founders of the nation could not envision medical procedures of the future just as they could not envision automatic weapons, nuclear bombs or tanks. However common sense says we don't want John Q Public all owning a tank they could level their neighbors house with during the next neighborhood dispute.

The founders gave us a good document and the ability to amend it as times and innovations callled for it.
 
I had written out a fairly concise list of choices with definitions when I realized that the folks here are smarter than your average bear and it was unnecessary.

Personally, I'm a textualist. If the legislators can't reduce to words what they mean to convey, they've written a bad law.

Im perfectly willing to make several concessions about this.

1. I will admit that almost every law requires some bit of interpretation. But the words should still control.

2. I will admit that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. But this is the role of the judiciary.

3. I will admit that words are symbols for concepts that shift in meaning over time. But the very concept of stare decisis should help us keep meanings as absolute as they can be. There's a recourse for changing what the law is because it's outdated. Not interpretation - legislation!

But the whole point of writing something down is to hold people to what is written. I'd love to see more hermeneutics be brought into the legal realm, if the product is focus, not chaos.

So tell me!

This is not a difficult concept. Lawyers do this work every day. They interpret contracts and leases everyday. A statute or a Constitution are no different. To contend otherwise is to engage in pure sophistry to attempt to get a result that would otherwise differ from a fair reading of the terms or the provisions.

You read the words that describe the intent of the parties. Since those words were written at a particular time in history (that is they were not written today nor in the future) they exist in that context. If you are unclear about what a particular word or phrase meant in a by-gone era, there is no shortage of sources from which to gain an understanding of the meaning of a particular word or phrase from that time period. The point is not that we should be "stuck in the past" but that we should not deviate from the "meaning" of those words.

For those particular hard heads. If I am living in the 18th Century and I say the government has control over transportation and list transport by river boat, post roads and the high seas. It would be nonsensical to not, in the current day, include airplanes and highways. If we later develop new crazy technology that also is part of the transportation system, it means that too.

That would be the rule for Constitutions. Things that are meant to endure for centuries. For legislation, the bar might be higher. This is because legislation regulates things in greater detail. Because of the relative ease of modifying and updating statutes as compared to a Constitution, it should be both more exact in what the law is regulating and not easily generalized to other subjects.

For instance, a law governing the legal operations of a sea port, should not be generalized to govern the operations of an airport. A new law should be written.
 
Someone would be on crack to try to throw judicial review out the window. But to say that judicial review = living constitution is absolutely wrong.

Absolutely not - judical review is what keeps our constitution alive.

I think the problem may be in what was interpreted into (but not included in) my post. I never said my idea of judicial review is to re-define the constitution. I believe it provides for the interpretation and application of the constitution to situations our founders could have never dreamed of.
It may sound like an unimportant distiction to some folks, but to me it is crucial.

For instance - let's take the second amendment. I do not think there is a way to reasonably interpret this in a way that bans individual ownership of guns. I've heard people try and to me their arguments don't wash. But I also don't believe it prohibits some common sense, reasonable regulation like registration and background checks and denying the right to felons, etc ...

Our founders may have never been able to conceive of surface-to-air missiles. And I don't think there is any "constitutional" problem with banning the individual ownership of surface to air missiles. This ban would be "interpreting" the constitution in a way that allows this ban. But banning individual ownership of ALL guns would be redefining the second - imho.

(WV peach beat me to it - but I think we are trying to make the same point. I apologize if my previous posts weren't clear enough to get this point across.)
 
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Dubya told me " it's just a Goddamn piece of paper":cuckoo:
He was correct.:(

I left.:cool:

Hmm, another troll:

FactCheck.org: Did President Bush call the Constitution a "goddamned piece of paper?"

December 12, 2007
Q:
Did President Bush call the Constitution a "goddamned piece of paper?"
Is it true that President Bush called the Constitution a "goddamned piece of paper?" He has never denied it, and it appears that there were several witnesses.
A:
Extremely unlikely. The Web site that reported those words has a history of quoting phony sources and retracting bogus stories.
The report that Bush "screamed" those words at Republican congressional leaders in November 2005 is unsubstantiated, to put it charitably.

We judge that the odds that the report is accurate hover near zero. It comes from Capitol Hill Blue, a Web site that has a history of relying on phony sources, retracting stories and apologizing to its readers.

The Quote

The report was posted on Dec. 5, 2005. According to author, Doug Thompson, unnamed Republican leaders complained to Bush during a White House meeting about "onerous" portions of the USA Patriot Act, prompting the following:
Capitol Hill Blue: “I don’t give a goddamn,” Bush retorted. “I’m the President and the Commander-in-Chief. Do it my way.”

“Mr. President,” one aide in the meeting said. “There is a valid case that the provisions in this law undermine the Constitution.”

“Stop throwing the Constitution in my face,” Bush screamed back. “It’s just a goddamned piece of paper!”
The evidence

There's no record of Bush ever using these words in public and no other news organization has reported him using them privately. Thompson based his report on three sources whom he didn't name. He gave the date of the quote as "last month," which would put it sometime in November 2005.

Thompson told us he once removed the story from his Web site when others raised doubts and no other news organization came up with a similar story. But he said he later reinstated it and currently believes it to be true. "I wrote the story and I stand by it," Thompson said in a telephone interview.

Thompson told us he based the story on e-mail messages from three persons he knows, all of whom claim to have been present at a White House meeting and to have heard Bush make the statement. He said he finds their account credible: "Sometimes I just have to go with my gut, and my gut tells me he did say this."

The unreliable gut

Thompson's "gut" has proven to be a unreliable guide in the past, however. He has admitted quoting trusted sources in the past who later turned out to be frauds -- twice.
In 2003 Thompson confessed that he had been "conned big time" by a source who claimed to be a former CIA contract consultant named Terrance J. Wilkinson. Thompson quoted this "source" as claiming to be present at two White House meetings in which Bush ignored intelligence officials' doubts about reports of Iraq seeking uranium. Thompson said he had been relying on the same man for two decades and had "no doubt" about his credibility, only to discover that "someone has been running a con on me for 20 some years and I fell for it like a little old lady in a pigeon drop scheme." He erased a number of stories from the site that had been based on information from "Wilkinson" and deleted anonymous quotes given to him by "Wilkinson" from other stories.

Thompson said then: "It will be a long time (and perhaps never) before I trust someone else who comes forward and offers inside information. The next one who does had better be prepared to produce a birth certificate, a driver's license and his grandmother's maiden name."

That was two years before the "piece of paper" quote attributed to three unnamed sources. But, far from demanding solid proof, Thompson continued to quote at least one more phony source until 2006, when a blogger started to question the existence of "George Harleigh." Thompson had for years quoted this supposed former Nixon and Bush appointee. But when no records of such a man could be found, Thompson admitted he had never even met him:

Doug Thompson (July 26, 2006): We would get quotes via email on current topics. He claimed to be a retired political science professor from Southern Illinois University and an appointee of both the Nixon and Bush administration. I was told he had been checked out. But he wasn't who he said he was and we used his phony name in stories.

This time Thompson says he revised or deleted 83 stories that had relied on information from "Harleigh" or quoted him.
In his defense, Thompson says: "[The] 83 articles that we revised or removed represent less than 1 percent of the total production of this Web site over the past 13 years. While errors must never be condoned, a 99+ percent of accuracy is a percentage I can live with. "

But we also note that Thompson described his own reporting habits this way:
Doug Thompson (July 26, 2006): I started taking more chances with stories, jumping on ones with sketchy sources, always trying to outdo the last "big" story. I had people willing to help me and they would send me info that I used often on their word alone.

. . . I wrote stories based on emails from sources I never met. I would meet self-proclaimed "important people" in out-of-the way bars, taking what they told me at face value. Washington is a breeding ground for phonies and wannabes. Too often I printed what they told me because I was so full of myself that I was sure it was true and did not require further verification.
By Thompson's own account, these were the habits still in place when he reported the "piece of paper" quote in 2005.

We also note that Thompson expresses extreme personal hostility toward Bush, calling him in one recent article a "madman," a "despot," and "a man without honor, a leader without conscience and a human being without a shred of decency or humanity."

Thompson is a former Republican congressional aide and political consultant. He was manager of the National Association of Realtors political action committee for several years, ending in 1992. But his experience as a journalist prior to launching Capitol Hill Blue was limited to working as a local reporter at the Roanoke Times and a columnist at The Telegraph (Alton, Ill.), ending in 1981. He currently lives and works from his home near the town of Floyd in the Blue Ridge Mountains of Virginia, nearly 290 miles away from the White House.

Good advice

Capitol Hill Blue does offer one sound bit of advice, under the heading of "Just the FAQs (Frequently Asked Questions):"
Capitol Hill Blue:

Should we believe what you print simply because you say it is so?

Absolutely not. You should read many publications and draw your own conclusions.
We agree with that. Even taking Thompson at his word, and dismissing the possibility that he just made up his quotes and sources, we conclude that the "piece of paper" quote is probably about as genuine as "George Harleigh" or the phony CIA "source" whom Thompson quoted in 2003.

-Brooks Jackson
 
The constitution is a living, breathing document. Judicial review and interpretation are necessary to apply constitutional principles to contemporary, individual cases.

100% wrong. It is absolutely not a "living breathing document" in any way and was never intended to be.

The contrary in fact is true.

The document itself provides for the ONLY way it is supposed to be subject to alteration: amendment.

The bogus claim that the Constitution is a "living breathing document" is nothing more and nothing less than a transparent way to evade such restrictions as it imposes which liberals dislike. They tend to dislike any checks on their ability to "reign." This is why (despite saying things to the contrary) liberals tend to oppose personal freedom in favor of State authority in so many varied areas of our lives.

The Constitution, PROPERLY understood (not that nonsensical "living breathing" crap), stands in their way. It frustrates their purposes and their agenda. It is for this reason that they lie and make the deliberately and obviously false claim that it is a "living breathing" document.

It most certainly is not.

Take out all the blathering about the liberals that's totally unprovable, and I agree with you.

I'm pleased that you agree in essence, anyway.

Out of curiosity though: how many conservatives make the claim that the Constitution is a "living breathing document"? I am not familiar with any.
 
Law is not a river that every time you step in, it changes. There's no purpose in having a written document if you're not holding people to what is written.

If judges can just make it up, then it's entirely illusory.

I'll give you that legislative intent can clear up grey areas. I've done enough research of floor debates to admit that. It's debatable whether the founding fathers meant their individual writings to speak for the entirety of the group. It speaks to each one, but not "necessarily" to the whole.

And are there times when neither the plain meaning of the law, nor the legislative intent, nor the precedent can yield something clear at all?

Unfortunately yes. But that's not the majority of the time.

I believe in a strict adherence thereto. I don't believe in playing loose with the law to fit the whims of any person(s).

Judges and lay people alike have been interpreting the law for years. Right or wrong, it is what it is.

A lot of political differences and factions today are born from a dfiference in interpretation, when it comes to Article 1, Section 8. As clear as it may be for me, others may read it, and interpret it differently, for a plethora of reasons. Heck, there are even differences as to methods of interpretation.

Sometimes interpretation is good, and sometimes it is bad.

Welcome to the thread.

Just because people CAN read something differently doesn't mean they should.

I agree with you.
 
My guides to the Constitution are A. Hamilton and J. Marshall, and my poster boy for it in action is Abraham Lincoln.

That's where you screwed up. Hamilton turned bad. Power, Power, Power. More, More, More.

Madison was referred to as The Father of The Constitution.

Hamilton is the Father of The Oligarchy Nation.
 

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