NationStates Jolt Archive

From time to time during legal arguments, some NSGers will claim to support "strict construction" of the U.S. Constitution.

Law.com provides the following definition of strict construction:

strict construction
(narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

Most commonly strict construction is associate with the argument that things not explicitly stated by the text of the Constitution -- abortion, for example-- are not protected by the Constitution.

I'm curious as to whether anyone will be willing to declare themselves a strict constructionist and/or debate the matter.

So the Law.com definition is exactly opposite of the laymen uses of the terms.

So the Law.com definition is exactly opposite of the laymen uses of the terms.

I'm afraid I don't follow you. I think the Law.com definition fits with the lay concept of "strictly" construing the Constitution. :confused:

EDIT: I am open to debate about what strict construction means. I provided the Law.com definition merely to help people understand what I am talking about. If someone thinks that strict construction means something else, please say so.

I'm afraid I don't follow you. I think the Law.com definition fits with the lay concept of "strictly" construing the Constitution. :confused:

The debates I've had usually consist of the "strict" including original intent and not focusing on absolute language w/ the "broad" being closer to the "living document" theory and needing to modify it based off of absolute language arguments.

ex. (shock) Firearms. One side claims original intent of RKBA as right of the people w/o modern interpretation while other uses lanquage of 2A to limit it to militias and that it wouldn't apply to modern society.

Both sides using parts of each definition.

By the two definitions given, I would fall somewhere in between by following the original intent but not necessarily having it reinterpreted.

The debates I've had usually consist of the "strict" including original intent and not focusing on absolute language w/ the "broad" being closer to the "living document" theory and needing to modify it based off of absolute language arguments.

ex. (shock) Firearms. One side claims original intent of RKBA as right of the people w/o modern interpretation while other uses lanquage of 2A to limit it to militias and that it wouldn't apply to modern society.

Both sides using parts of each definition.

By the two definitions given, I would fall somewhere in between by following the original intent but not necessarily having it reinterpreted.

Got it. You are correct that the term is ambiguous and sometimes includes originalism. It has more meaning as an opposite of "broad" or "living document" interpretations of the Constitution.

I was thinking along the textualist lines regarding unemerated rights.

I think any argument for strict and literal reading of the constitution is soundly defeated by the 10th amendment, a clear indication by the founders that they did not intend the constitution to be read as a clear enumerated list, but rather as a reflection of social values and goals which evolve as our understanding of human nature evolves.

You know, I realize something, those that tend to argue for the "read the constitution exactly as it says" crowd tend to be the more authoritarian conservatives, who tend to be largely christian.

10 commandment fetish maybe? Which is funny in and of itself considering how pro war/pro death penalty christians try to argue that kill doesn't really mean kill, but right to privacy? what right to privacy? I don't see privacy written here!

Does "strict construction" compensate for changes in the language since the text was written? For example would strict construction of a safety regulation regarding cigarettes "No fags allowed at gas stations." require banning homosexuals from gas stations?

I think a constitution must be translated to modern language and technology but no other reinterpretations should be allowed. If you bend a little here and twist a little there you'll eventually end up with a corrupted reinterpretation that wasn't the original intention at all. I'm not familiar enough with the US one to know if following it properly would lead to any serious problems though.

Does "strict construction" compensate for changes in the language since the text was written? For example would strict construction of a safety regulation regarding cigarettes "No fags allowed at gas stations." require banning homosexuals from gas stations?

Considering that the use of the word "fag" to refer to homosexuals predates the use of the term to refer to cigarettes, no.

Got it. You are correct that the term is ambiguous and sometimes includes originalism. It has more meaning as an opposite of "broad" or "living document" interpretations of the Constitution.

I was thinking along the textualist lines regarding unemerated rights.

Ah. Along those lines I would lean more towards the "broad" definition using arguments similar to Neo's.

I think any argument for strict and literal reading of the constitution is soundly defeated by the 10th amendment, a clear indication by the founders that they did not intend the constitution to be read as a clear enumerated list, but rather as a reflection of social values and goals which evolve as our understanding of human nature evolves.

The 9th Amendment, actually, and I'm in full agreement. While I take a very antifederalist position I do believe that the Federal government should be very proactive in ensuring that basic human rights, enumerated and not, are protected.

Anyway, people these days prove Madison right when he didn't want a Bill of Rights. Of course, if we didn't have one who knows what sort of shape we'd be in.

what America needs is real representatives of the people influencing law and government, for this I propose the use of Rock stars and some light Jazz :)

course the idea of having set rules which a people must abide to for all time does worry me but the again I am but a peasant

I know this will probably scare anyone away from claiming they are a strict constructionist, but I want to move the debate along if possible.

As a "strict constructionist," how do you deal with the following:
(1) the 14th Amendment
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
(3) the 9th Amendment
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

Do you really wish to insist that none of these are protected by the Constitution?

Now as to my particular belief, I don't like the wording of a "living constitution". The idea of a living constitution implies that the constitution changes and evolves over time. It doesn't, it can't. A document can't change what it is without being rewritten.

The question is WHAT does that document proport to be? It is my belief that the founders set out the constitution to protect those rights necessary for the stability and success of a liberal democracy, those rights, as Cardozio put it "implicit in the concept of ordered liberty". The founders designed the constitution to protect fundamental basic liberties, however they were not necessarily capable of articulating what all those liberties were.

They were very much the products of their times, and knew that. They wrote the constitution to keep in mind those rights they believed to be such, but also recognized that as society evolves, so to does our understanding of those rights evolve. The constitution does not change. It has always protected those fundamental rights. It is merely our understanding of what those rights are that changes. The founders listed those they could articulate, but left the 10th amendment as a reminder of their own inability to articulate the full range of them, and as a method to avoid the strict interpretation of the words, the very thing they were trying to avoid.

Even the wording of the bill of rights makes it clear, the constitution adds no rights, it merely recognizes them. "Congress shall make no law prohibiting the free exercise..." "the right of the people shall not be infringed" etc etc. I am not a "living constitutionalist" I am a "spirit of the constitution". It should not ever be read as simply a list of rights granted, rather the thing in its entirety should be considered, in order to gain an understanding of what they were trying to do. And what they were trying to do was create a document that protected our fundamental liberties, with the recognition that our concept of fundamental liberties must evolve over time, and the constitution needs to be flexible to accomodate such evolution.

In short, the constitution is not evolving. We are. The constitution was merely written with that in mind.

Considering that the use of the word "fag" to refer to homosexuals predates the use of the term to refer to cigarettes, no.
Forgive me, my memory when it comes to the history of the English language is very short, I have only known the language for 10 years. It seems I need another example to get an answer to the question.

Would strict and literal interpretation of a minimum salary for (human) computers require paying a salary to the (electronic) computers we have today?

The constructionist view of the Constitution makes it seem like a holy document. I think I've mention the book Cycles of American History on this forum before; there is a good comparison of the two biggest views of the American destiny: the first, America is an experiment, to create a society that best preserves the rights of its citizens and their well-being. This is the one I think the Founding Fathers believed, and the one I stick to. The second is messianism, believing that America is destined to be great, and we can't really screw up because we're America. This is the one people like Ronald Reagan believed. Because I think the Founding Fathers intended the Constitution to be amended, to be almost a "rough draft" and not something like the Ten Commandments, I think it is necessary for the courts to interpret it, taking into account changes that have occurred since it was written.

The 9th Amendment, actually

Bloody hell that's embarassing. You are quite correct, the 9th amendment, not 10th.

Bloody hell that's embarassing. You are quite correct, the 9th amendment, not 10th.

Which is the one that prevents me from coveting my neighbor's wife?

I'm not totally sure exactly how I'd fall.

I view the construction of the constitution as partially strict and partially living... That is, there are effects and meanings which can be construed from existing components (privacy rights and therefore abortion rights, equal opportunity for marriage regardless of sexual orientation, etc.); but I think where the text is written its application is strict (I would oppose attempts to limit speech or religious expression on public owned lands/property)... In regards to second amendment issues, I think application is needed to both definitions, in light of the constitutional opposition to maintaining a federal standing army; it is therefore up to the states to maintain militia forces for the capacity of defending home territory (and it should be those states defining the scope and application of militia forces)... Most states already define, legally what their militias are composed of, and the second amendment wording was written in light of the state maintaining militia forces which can then be called forth for federal duty. Our present standing military only exists because of a constitutional legal loophole which allows congress to continually renew this force perpetually.

I believe that the intended meaning of legislation - including the US constitution - is far more important than the literal meaning. I'm not sure if there are records of the debate over what to include in the constitution, but I know that in the UK records are kept of debates in parliament over legislation so that when that legislation needs to be enforced a record exists of the intentions to avoid problems arising from ambiguous written parts.

I'm curious as to whether anyone will be willing to declare themselves a strict constructionist and/or debate the matter.

What would one be if one doesn't care for this quilt of guesswork either stance has had to become and realises that the document is hopelessly out of date and in serious need of an update to be up to snuff with modern standards?

What would one be if one doesn't care for this quilt of guesswork either stance has had to become and realises that the document is hopelessly out of date and in serious need of an update to be up to snuff with modern standards?

And what "modern standards" would those be oh enlightened one? Share with us your wisdom.

And what "modern standards" would those be oh enlightened one? Share with us your wisdom.

Well one such standard is sufficiently clear language that 200+ years after its inception people aren't still bickering on how to interpret it and one doesn't base an entire system of law on what a bloated and much too powerful supreme court (which keeps changing its mind) has decided that the poorly written document is supposed to mean today.

Another is, of course, that the document itself evolves with the times by being accessible to revision instead of just tacked on amendments that just work to barely patch up the quilt here and there.

Well one such standard is sufficiently clear language that 200+ years after its inception people aren't still bickering on how to interpret it and one doesn't base an entire system of law on what a bloated and much too powerful supreme court (which keeps changing its mind) has decided that the poorly written document is supposed to mean today.

So you're saying lanquage doesn't change over a course of 200+ years? Why don't you elaborate on why a nine panel judiciary is "bloated"? You speak of things being bloated. How long is the EU constitution?

Another is, of course, that the document itself evolves with the times by being accessible to revision instead of just tacked on amendments that just work to barely patch up the quilt here and there.

So basically you're calling for a constitutional convention. All that requires is for the states to call for one, effectively completely amending the constitution. Read Article 5.

Well one such standard is sufficiently clear language that 200+ years after its inception people aren't still bickering on how to interpret it and one doesn't base an entire system of law on what a bloated and much too powerful supreme court (which keeps changing its mind) has decided that the poorly written document is supposed to mean today.
It should be rewritten so it can't be misinterpreted? Wouldn't we have to interpret it before doing that?

Another is, of course, that the document itself evolves with the times by being accessible to revision instead of just tacked on amendments that just work to barely patch up the quilt here and there.
That's exactly what amendments are; they revise the Constitution.

So you're saying lanquage doesn't change over a course of 200+ years? Why don't you elaborate on why a nine panel judiciary is "bloated"? You speak of things being bloated.

I am saying that poor language doesn't become good language with the passage of time. The bickering about the language proves how poor it was to begin with, and that it has been allowed to go on for such a long time seems mostly due to an irrationally sentimental attachment to a created mythos around the document that places it at the centre of a national ego.

And I call it bloated because of its incommensurate power to change legislation not through acts of law, but through acts of opinion dependent on a lottery of who happens to be in power when one or several of them croak/deign to resign.

How long is the EU constitution?

The EU does not have a constitution, and I am opposed to it ever getting one. How is that relevant to the USA constitution?

So basically you're calling for a constitutional convention. All that requires is for the states to call for one, effectively completely amending the constitution. Read Article 5.

I'm not calling for anything - it's not my country's constitution, thankfully. I mean, the USA constitution may have been all that 200 years ago, but today it's... well, often people from the USA like to extol that they have the world's oldest constitution. It shows. I am just asking what a stance that the bickering be ended with a better constitution is called.

What would one be if one doesn't care for this quilt of guesswork either stance has had to become and realises that the document is hopelessly out of date and in serious need of an update to be up to snuff with modern standards?

someone who has nothing relevant to add to the topic at hand and therefore really shouldn't be posting in it?

Just a thought.

It should be rewritten so it can't be misinterpreted? Wouldn't we have to interpret it before doing that?

You know, you wouldn't have to base a new one on the poor old one. Novel concept, no?

That's exactly what amendments are; they revise the Constitution.

No, a revision would be a rewrite of parts - not a tacking on of a piece that reference the part and changes it, or just expands on the rest of the brokenness.

The EU does not have a constitution, and I am opposed to it ever getting one. How is that relevant to the USA constitution?
Actually, it does (http://news.bbc.co.uk/2/hi/europe/2950276.stm).
You can even see a copy here (http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/09_01_05_constitution.pdf), but it's a large PDF file.

485 pages...yes, that's much less bloated than the US one.

Actually, it does (http://news.bbc.co.uk/2/hi/europe/2950276.stm).
You can even see a copy here (http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/09_01_05_constitution.pdf), but it's a large PDF file.

Actually, it doesn't, since what you link to was rejected in referenda. Do keep up with the times and news!

No, a revision would be a rewrite of parts - not a tacking on of a piece that reference the part and changes it, or just expands on the rest of the brokenness.
"A rewrite of parts" and "a piece that references the part and changes it."
I don't see what the difference is. If the Congress erased the parts that were removed, would that make you happy?
I suppose it could make reading it easier, but as long as it is clear what the current law is, legibility isn't that huge a deal.

You clearly know plenty about current events and the world in general, but the US Constitution doesn't seem to be something you're familiar with. I advice not acting as if it is.

485 pages...yes, that's much less bloated than the US one.

Also, is it so difficult for you to read what I wrote? I was referring to the USA supreme court being bloated. But if you wish to pretend that the EU's rejected constitution somehow makes the USA one less bad, you may do so - I however will ignore you, since the EU's rejected one has nothing to do with the USA's dysfunctional one.

Actually, it doesn't, since what you link to was rejected in referenda. Do keep up with the times and news!

I realize that. However, that doesn't mean the Constitution does not exist, nor does it mean the document will not eventually be ratified. It's only a few nations (France and the Netherlands, I believe) preventing its complete ratification.
Link (http://news.bbc.co.uk/2/hi/europe/3954327.stm)

Also, is it so difficult for you to read what I wrote? I was referring to the USA supreme court being bloated. But if you wish to pretend that the EU's rejected constitution somehow makes the USA one less bad, you may do so - I however will ignore you, since the EU's rejected one has nothing to do with the USA's dysfunctional one.

Could you extrapolate as to why the Court is bloated? Perhaps you could even provide evidence, as the OP so kindly did at the beginning of this thread.

Well one such standard is sufficiently clear language that 200+ years after its inception people aren't still bickering on how to interpret it and one doesn't base an entire system of law on what a bloated and much too powerful supreme court (which keeps changing its mind) has decided that the poorly written document is supposed to mean today.

Meh.

1. Constitutional law is an evolving matter, but almost completely within the lines of past precedent. Much of the meaning of the Constitution is not up to serious debate. The fact that there are new question that arise does not mean that the entire system of law is up for grabs.

2. You are trying to exploit our ignorance of the Swedish Constitution, but are you really going to argue that it requires no interpretation -- that there are no constitutional debates in Sweden?

Another is, of course, that the document itself evolves with the times by being accessible to revision instead of just tacked on amendments that just work to barely patch up the quilt here and there.

Are you claiming that the Swedish Constitution is easier to revise in full than the US Constitution? Are you basing this on anything other than the fact that some parts of the Swedish Constitution have been more recently revised?

I am saying that poor language doesn't become good language with the passage of time. The bickering about the language proves how poor it was to begin with, and that it has been allowed to go on for such a long time seems mostly due to an irrationally sentimental attachment to a created mythos around the document that places it at the centre of a national ego.

Again, much of the language is just as clear as that of the Swedish Constitution.

Much of Supreme Court caselaw has to do, not with issues that have persisted over 200 years, but rather new issues that have come up.

And I call it bloated because of its incommensurate power to change legislation not through acts of law, but through acts of opinion dependent on a lottery of who happens to be in power when one or several of them croak/deign to resign.

*sigh*

The Supreme Court is a political branch like any other, but it is the least volitale branch. It's decisions are not random or so easily dismissed.

I'm not calling for anything - it's not my country's constitution, thankfully. I mean, the USA constitution may have been all that 200 years ago, but today it's... well, often people from the USA like to extol that they have the world's oldest constitution. It shows. I am just asking what a stance that the bickering be ended with a better constitution is called.

How would an argument over a new constitution be superior to an argument over the meaning of the existing Constitution?

I don't see what the difference is.

The difference is: "These rights are protected in this and this way" as opposed to: "These rights are protected in this way." [skip huge passages] "And this way" [skip more passages] "And this way, too!" [skip more passages] "No, we mean it! Women and blacks are men, too! Come on, already! Forget the fucking first version we kept there for no reason!"

You clearly know plenty about current events and the world in general, but the US Constitution doesn't seem to be something you're familiar with. I advice not acting as if it is.

What, because I don't buy the mythos around it you were fed with your mother's milk? Please. For the crappiness of the USA constitution one need only look at the OP of this thread - you actually bicker around what it's supposed to mean and you have a part of government solely there to referee the bickering! A good constitution doesn't require such guessing - its meaning is apparent.

Meh.
Again, much of the language is just as clear as that of the Swedish Constitution.

Clearer, even. The Swedes wrote theirs in Swedish.

I am saying that poor language doesn't become good language with the passage of time. The bickering about the language proves how poor it was to begin with, and that it has been allowed to go on for such a long time seems mostly due to an irrationally sentimental attachment to a created mythos around the document that places it at the centre of a national ego.

Ah, so it all boils down to your hatred towards anything American. Got it. Care to show the rules of the English Language of the time that make it "poor" ?


And I call it bloated because of its incommensurate power to change legislation not through acts of law, but through acts of opinion dependent on a lottery of who happens to be in power when one or several of them croak/deign to resign.

That really makes no sense whatsoever. What "lottery" are you speaking of? Are you talking about general elections? I take it you have a better method? How can they "change legislation"?



The EU does not have a constitution, and I am opposed to it ever getting one. How is that relevant to the USA constitution?

You're using terms like "bloated" which don't seem to mean what you think they mean.



I'm not calling for anything - it's not my country's constitution, thankfully. I mean, the USA constitution may have been all that 200 years ago, but today it's... well, often people from the USA like to extol that they have the world's oldest constitution. It shows. I am just asking what a stance that the bickering be ended with a better constitution is called.

Better by your definition. Nice way to dodge around that the COTUS can be completely amended which you claimed it couldn't.

I realize that. However, that doesn't mean the Constitution does not exist, nor does it mean the document will not eventually be ratified. It's only a few nations (France and the Netherlands, I believe) preventing its complete ratification.
Link (http://news.bbc.co.uk/2/hi/europe/3954327.stm)

It will not be ratified. It has already been rejected as unpassable, and a new one is being worked on. The EU, meanwhile, has no constitution. Yes, that's what rejecting something means - that one doesn't accept it.

What, because I don't buy the mythos around it you were fed with your mother's milk? Please. For the crappiness of the USA constitution one need only look at the OP of this thread - you actually bicker around what it's supposed to mean and you have a part of government solely there to referee the bickering! A good constitution doesn't require such guessing - its meaning is apparent.

I guess in a system with a good constitution there would be no role for the Supreme Court interpreting the document.

Apparently Sweden doesn't have a good constitution either. Otherwise you wouldn't have cases like the Ake Green case.

It will not be ratified. It has already been rejected as unpassable, and a new one is being worked on. The EU, meanwhile, has no constitution. Yes, that's what rejecting something means - that one doesn't accept it.

So you have proof the Revision will be much different?

I think any argument for strict and literal reading of the constitution is soundly defeated by the 10th amendment, a clear indication by the founders that they did not intend the constitution to be read as a clear enumerated list, but rather as a reflection of social values and goals which evolve as our understanding of human nature evolves.

You know, I realize something, those that tend to argue for the "read the constitution exactly as it says" crowd tend to be the more authoritarian conservatives, who tend to be largely christian.

Take a look at the 9th and 10th – they clearly state that those right enumerated in the constitution are not the only rights of the people, and that anything not explicitly stated as a right and duty of the federal government, the federal government has no right or ability to interfere – thus there are no grounds whatsoever for the federal government to regulate what I can stuff a mattress with. Any laws dealing with an issue not clearly laid out in the constitution as the purview of the federal government is something the states and the people have to cover. Federal officials have no right to make laws constraining my freedoms and activities not specifically laid out in the constitution.

Here you have an atheist libertarian – quite the opposite of your theological authoritarians.

10 commandment fetish maybe? Which is funny in and of itself considering how pro war/pro death penalty christians try to argue that kill doesn't really mean kill, but right to privacy? what right to privacy? I don't see privacy written here!
It isn't a prohibition against killing, it is a prohibition against murder. Substantial difference. And the right to privacy is quite clearly spelled out in the 4th amendment.


I know this will probably scare anyone away from claiming they are a strict constructionist, but I want to move the debate along if possible.

As a "strict constructionist," how do you deal with the following:
(1) the 14th Amendment
What has that got to do with anything? So states cannot pass any law impinging upon the freedoms of the citizens, a bit about electing representatives (modified by later amendments), traitors and rebels are not allowed to hold public office, the federal government will pay its debt, and finally congressional power to enforce this amendment.

Sounds pretty good to me. I don’t see where taking it at as written is a problem.

(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
Once again, not at all in opposition to the constitution – the purpose of the 14th amendment section 1 is to ensure the rights of the people. This just backs up the 9th and 10th amendments with saying that not only shall the federal government not impinge upon the rights, but that states cannot either.

(3) the 9th Amendment
Umm… I’m seriously not able to see any argument here. You're just naming amendments as if that somehow is a substitute for argument. I would be happy to respond to whatever argument you have about how a strict interpretation of the constitution finds this amendment contradictory, but you have to make one first.

(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
This makes no sense – please rephrase.

(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:
And had you bothered to read the constitution and its amendments you would find that the constitution simply lists some important rights, and quite clearly states that it is in no way a complete list, and that the government only has those rights clearly spelled out in the constitution, and is therefore unable to impinge upon any rights of the citizens if the constitution does not explicitly give them that right.

the right to vote, subject only to reasonable restrictions to prevent fraud
There are provisions preventing states from restricting the right to vote, but each state is responsible for their own electors. The president and vice president is chosen by the electoral college, and not by popular vote – only the most ignorant are not aware of the electoral college. The ability to vote in presidential elections is a state level process.
Voting for senators is held by the 17th as the same for electing state senators, so once again, it is essentially a state process.

the right to cast a ballot in equal weight to those of other citizens
Now you are quibbling about the very definition of the voting process not being defined. It is generally assumed that the constitution did not need to have a dictionary and encyclopedia incorporated into it. Cite one single reference to differential weights of votes – just one. You can cite slaves being counted as a fraction in terms of the census, but nothing even vaguely implies disproportionate weights of votes – you would have to redefine the very terms and that is stretching this really into absurdity.

the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
right to bodily integrity
Clearly laid out in the 5th


the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to custody of one's children
the right to choose and follow a profession
No text restricts such rights. You obviously have a gross misconception about the constitution – the rights enumerated in the constitution are by no means the only rights of the people. If the constitution does not specifically give the government the right to abridge those freedoms, it has no power whatsoever to make any kind of restriction at all.

the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
Again, not something the government has any ability to restrict. There is no provision in the constitution relating to education – the government has no right to say anything about it.

Do you really wish to insist that none of these are protected by the Constitution?
Once again, the constitution is not, in any way shape or form, in any way explicitly or implied, a list in totality of the rights of the people. It only spells out what the federal government has control over and what it is allowed to do.

Aside from that, you will have to look at the constitution of whatever state you are residing.

Please people, take half a moment to actually READ the damn thing before going off half-cocked. The US is made up of sovereign states – the federal government is not the sum total of government in the US. It has slowly been growing, like a tumor, for so long that people tend to think of it as the omnipresent creature interfering with every aspect of your life and influencing every single decision, but that is not what it was ever supposed to be. I favor returning the federal government to what it is supposed to be – simply a federal body to help the various states and territories maintain a union of many sovereign states.

The difference is: "These rights are protected in this and this way" as opposed to: "These rights are protected in this way." [skip huge passages] "And this way" [skip more passages] "And this way, too!" [skip more passages] "No, we mean it! Women and blacks are men, too! Come on, already! Forget the fucking first version we kept there for no reason!"
So it really is a stylistic thing; there is no legal difference between the two versions.



What, because I don't buy the mythos around it you were fed with your mother's milk? Please. For the crappiness of the USA constitution one need only look at the OP of this thread - you actually bicker around how what it's supposed to mean! A good constitution doesn't require such guessing - its meaning is apparent.

My ignorance of the Swedish constitution is quite large, so I looked it up. Here (http://www.servat.unibe.ch/law/icl/sw00000_.html)is a copy of the Instrument of the Government part.

Here are some interesting things I found:

Article 5

(1) The King or Queen who occupies the throne of Sweden in accordance with the Act of Succession shall be the Head of State.
(2) The provisions of this Instrument of Government which relate to the King shall relate also to the Queen if she is the Head of State.
There is nothing confusing about this, I just thought it was interesting. I'm actually being serious when I say this.
Article 8
All citizens shall be protected against deprivation of liberty in their relations with the public administration. They shall also in other respects be guaranteed freedom of movement within the Realm and freedom to depart Sweden.
"Protected against deprivation of liberty in relation to public administration." Does this mean there are no prisons in Sweden? I'm assuming not, but the statement doesn't really tell me.
Article 13

(1) Freedom of expression and freedom of information may be restricted having regard to the security of the Realm, the national supply, public safety and order, the integrity of the individual, the sanctity of private life, or the prevention and prosecution of crime. Freedom of expression may also be restricted in economic activities. Freedom of expression and freedom of information may otherwise be restricted only where particularly important reasons so warrant.
What exactly is "security of the Realm, the national supply, public safety and order, the integrity of the individual, the sanctity of private life, or the prevention and prosecution of crime?"

This document was put together in 1975. In two-hundred years, will it be as clearer than the US Constitution? One can only hope.

1. Constitutional law is an evolving matter, but almost completely within the lines of past precedent. Much of the meaning of the Constitution is not up to serious debate. The fact that there are new question that arise does not mean that the entire system of law is up for grabs.

The problem is though that the system is so rigid to the new things that arise and doesn't depend on actual law, but on opinion that can be changed with the proper stuffing of the referee box.

2. You are trying to exploit our ignorance of the Swedish Constitution, but are you really going to argue that it requires no interpretation -- that there are no constitutional debates in Sweden?

Actually, there really aren't. Our constitution is rarely debated and the Supreme Court does not have the role of judicial reviewer. We have judicial preview instead, and that is done by the Council on Legislation prior to laws being passed.

Are you claiming that the Swedish Constitution is easier to revise in full than the US Constitution? Are you basing this on anything other than the fact that some parts of the Swedish Constitution have been more recently revised?

I am saying that the Swedish constitution is more easily revised technically, but also because it has a better system for revision - rewriting instead of amending.

Again, much of the language is just as clear as that of the Swedish Constitution.

And lots of it isn't. Yeah, Roe v. Wade! Yeah, the 2nd thingy! And so on...

Much of Supreme Court caselaw has to do, not with issues that have persisted over 200 years, but rather new issues that have come up.

New issues that the constitution should be able to be revised to deal with if they don't fit in the old version, instead of just pretending that what was written and read one way for some time all of a sudden gets to have a different meaning this day.

*sigh*

The Supreme Court is a political branch like any other, but it is the least volitale branch. It's decisions are not random or so easily dismissed.

It shouldn't be a political branch, but this is more my issue with the system your "founding fathers" took from that Frenchman (what's his name) and my penchant for parliamentarianism.

How would an argument over a new constitution be superior to an argument over the meaning of the existing Constitution?

Other countries have managed such a discussion and gotten such great results that their supreme courts aren't about refereeing the constitution. I don't think people of the USA to be incapable of a similar feat - in fact, a similar feat is but part of how a nation progresses. 200 + years down the line, it just may be time to let go of the things of the past and start a dialogue.

This document was put together in 1975. In two-hundred years, will it be as clearer than the US Constitution? One can only hope.

And here I thought you would have picked up on "Freedom of expression and freedom of information may otherwise be restricted only where particularly important reasons so warrant".

What qualifies as a particularly important reason? I see great scope for argument there right now - how is that going to look in 200 years?

Like our relatively recent arguments over the meaning of 'high crimes and misdemeanors' perhaps?

I guess in a system with a good constitution there would be no role for the Supreme Court interpreting the document.

Apparently Sweden doesn't have a good constitution either. Otherwise you wouldn't have cases like the Ake Green case.

The Åke Green case was settled on ECHR grounds, and that is a different matter not relevant to the Swedish constitution as the constitutional "case" (if one may call it that, seeing as the constitution had been revised just so that the law he was tried under would be constitutional) around it was not very complicated, which the Supreme Court also expressed (again, it does not have judicial review functions - that had been done before the law was passed by the Council on Legislation), but ECHR jurisdiction was deemed more relevant/pertinent/important than the Swedish constitution.

The Åke Green case was settled on ECHR grounds, and that is a different matter not relevant to the Swedish constitution as the constitutional "case" (if one may call it that, seeing as the constitution had been revised just so that the law he was tried under would be constitutional) around it was not very complicated, which the Supreme Court also expressed (again, it does not have judicial review functions - that had been done before the law was passed by the Council on Legislation), but ECHR jurisdiction was deemed more relevant/pertinent/important than the Swedish constitution.

So they changed the rules to fit the case.

You're basically saying you think it would be better if it were easier for the current regime to change the "Instrument of Government" and equivalent.

I'm sure Bush thanks you.

So it really is a stylistic thing; there is no legal difference between the two versions.

I am talking about things being poorly written. Tacking on doesn't exactly improve the writing.

"Protected against deprivation of liberty in relation to public administration." Does this mean there are no prisons in Sweden? I'm assuming not, but the statement doesn't really tell me.

Did you read the paragraph subsequent to it that only grants courts of law the right to deprive people of liberty? In Swedish "public administration" (which is only an approximate English translation, by the by) does not encompass courts - it encompasses just that - public administrations, such as government departments and so on. What that paragraph ends up meaning with the paragraphs that follow it can be summed up: "The government cannot arbitrarily detain people, only courts can deprive someone of liberty, and this is how they may do it, and this is what rights accused have".

What exactly is "security of the Realm, the national supply, public safety and order, the integrity of the individual, the sanctity of private life, or the prevention and prosecution of crime?"

Here again, had you continued reading you would have seen an elaboration:

"Vid bedömandet av vilka begränsningar som får ske med stöd av första stycket skall särskilt beaktas vikten av vidaste möjliga yttrandefrihet och informationsfrihet i politiska, religiösa, fackliga, vetenskapliga och kulturella angelägenheter.

Som begränsning av yttrandefriheten och informationsfriheten anses icke meddelande av föreskrifter som utan avseende på yttrandes innehåll närmare reglerar visst sätt att sprida eller mottaga yttranden."

This document was put together in 1975. In two-hundred years, will it be as clearer than the US Constitution? One can only hope.

It won't be in English, but in Swedish it is quite clear, especially if one reads entire sections instead of just a paragraph like you did when you failed to read that thing about the courts and also the elaboration that followed the other paragraph.

Take a look at the 9th and 10th – they clearly state that those right enumerated in the constitution are not the only rights of the people, and that anything not explicitly stated as a right and duty of the federal government, the federal government has no right or ability to interfere – thus there are no grounds whatsoever for the federal government to regulate what I can stuff a mattress with. Any laws dealing with an issue not clearly laid out in the constitution as the purview of the federal government is something the states and the people have to cover. Federal officials have no right to make laws constraining my freedoms and activities not specifically laid out in the constitution.

Here you have an atheist libertarian – quite the opposite of your theological authoritarians.

You are rather confused.

It is my contention that the Constitution does indeed protect unemerated rights. I listed some of the reasons that it does so and listed some of those rights. There are those that maintain the Constitution only covers what is enumerated. It is with those people I am arguing.


What has that got to do with anything? So states cannot pass any law impinging upon the freedoms of the citizens, a bit about electing representatives (modified by later amendments), traitors and rebels are not allowed to hold public office, the federal government will pay its debt, and finally congressional power to enforce this amendment.

Sounds pretty good to me. I don’t see where taking it at as written is a problem.

Once again, not at all in opposition to the constitution – the purpose of the 14th amendment section 1 is to ensure the rights of the people. This just backs up the 9th and 10th amendments with saying that not only shall the federal government not impinge upon the rights, but that states cannot either.

I'm not saying something "in opposition to the constitution." I'm debating what theory of interpretation one should use in construing the US Constitution. Believe it or not there are different schools of thought -- some people urge a strict or narrow view of the Constitution.

In that context, the 14th Amendment and the years of 14th Amenmdent precedent are relevant because it provides substantive as well as procedural due process rights. It protects liberty from encroachment by the states.

Umm… I’m seriously not able to see any argument here. You're just naming amendments as if that somehow is a substitute for argument. I would be happy to respond to whatever argument you have about how a strict interpretation of the constitution finds this amendment contradictory, but you have to make one first.

The 9th Amendment is relevant for exactly the reason you postulated at the start of your rant. It clearly states that the Constitutional rights of citizens are not limited to those rights that are enumerated.

This makes no sense – please rephrase.

The intention of the Founders that the Constitution not be limited to enumerated rights is evident in the purpose behind the 9th Amendment.

And had you bothered to read the constitution and its amendments you would find that the constitution simply lists some important rights, and quite clearly states that it is in no way a complete list, and that the government only has those rights clearly spelled out in the constitution, and is therefore unable to impinge upon any rights of the citizens if the constitution does not explicitly give them that right.

If you had bothered to read and understand the OP and my challenge to strict constructionists, you would see that your lecture to me here is entirely misplaced. I am arguing that the Constitution protects unemerated rights.


There are provisions preventing states from restricting the right to vote, but each state is responsible for their own electors. The president and vice president is chosen by the electoral college, and not by popular vote – only the most ignorant are not aware of the electoral college. The ability to vote in presidential elections is a state level process.
Voting for senators is held by the 17th as the same for electing state senators, so once again, it is essentially a state process.

Nothing here is responsive to the point. The Supreme Court has held that the Constitution protects the right to vote even though the Constitution does not expressly state that it protects such a right. That is my point. The fact that you take the implied right to vote for granted proves I am correct.

Now you are quibbling about the very definition of the voting process not being defined. It is generally assumed that the constitution did not need to have a dictionary and encyclopedia incorporated into it. Cite one single reference to differential weights of votes – just one. You can cite slaves being counted as a fraction in terms of the census, but nothing even vaguely implies disproportionate weights of votes – you would have to redefine the very terms and that is stretching this really into absurdity.

Again, you are pissing in the wind. The the right to cast a ballot in equal weight to those of other citizens is definitely a Constitutional right, but it is not one expressly found in the Constitution.

Clearly laid out in the 5th

Yes, the presumption of innocence and the reasonable doubt standard are protected by the 5th Amendment. But, no, they aren't "clearly laid out" there. They are something the Supreme Court has interpreted the 5th Amendment to include.

No text restricts such rights. You obviously have a gross misconception about the constitution – the rights enumerated in the constitution are by no means the only rights of the people. If the constitution does not specifically give the government the right to abridge those freedoms, it has no power whatsoever to make any kind of restriction at all.

Again, you have a gross misconception about my understanding of the Constitution. In response to me, you are making the point I was making. :headbang:

Again, not something the government has any ability to restrict. There is no provision in the constitution relating to education – the government has no right to say anything about it.

Um. State governments have power over education, but such powers are restricted by the 14th Amendment.

I didn't pull this list of unemerated rights out of thin air. Each connects to a case or set of cases in which the Supreme Court has held the Constitution protects an unemerated right.


Once again, the constitution is not, in any way shape or form, in any way explicitly or implied, a list in totality of the rights of the people. It only spells out what the federal government has control over and what it is allowed to do.

That, again, is my point. The Constitution protects against encroachment of more than just the enumerated rights.



Please people, take half a moment to actually READ the damn thing before going off half-cocked. The US is made up of sovereign states – the federal government is not the sum total of government in the US. It has slowly been growing, like a tumor, for so long that people tend to think of it as the omnipresent creature interfering with every aspect of your life and influencing every single decision, but that is not what it was ever supposed to be.

Please take a moment to READ the OP and my challenge to strict constructionists.

If you would stop calling me ignorant (which is laughable), you might see what I actually wrote rather than what you appear to think I said.

I favor returning the federal government to what it is supposed to be – simply a federal body to help the various states and territories maintain a union of many sovereign states.

Here we have a disagreement, but it is on a different topic than that I introduced in this thread.

So they changed the rules to fit the case.

They changed the constitution to allow the passage of a law they wanted to pass. The case is irrelevant to that, as it is illegal to pass laws for singular cases (you might want to look into getting something like that, this side of the Schiavo debacle) - he broke the law after it was passed, the law was not passed so that he himself could be prosecuted.

You're basically saying you think it would be better if it were easier for the current regime to change the "Instrument of Government" and equivalent.

I'm sure Bush thanks you.

Well, that's what happens if you elect evil people. Perhaps you'd not elect them as easily.

Ah, so it all boils down to your hatred towards anything American. Got it. Care to show the rules of the English Language of the time that make it "poor" ?

Ah, again with the USA persecution complex - you take everything as attacks on your way of life. I don't find your constitution all that - I am voicing my opinion on how and why it isn't all that. If you wish to take that personally and want it to be about "hatred" go right ahead, because it is infeasible that the Constitution not be all that! Because you've been indoctrinated into loving it so, or what? I assume that's why, because... well, past experience.

That really makes no sense whatsoever. What "lottery" are you speaking of? Are you talking about general elections? I take it you have a better method? How can they "change legislation"?

You're ignorant of how Supreme Court justices are appointed?

You're using terms like "bloated" which don't seem to mean what you think they mean.

And you seem to read things as an analphabet.

Better by your definition. Nice way to dodge around that the COTUS can be completely amended which you claimed it couldn't.

Look, there you go again! Reading things I never wrote.

I am talking about things being poorly written. Tacking on doesn't exactly improve the writing.



Did you read the paragraph subsequent to it that only grants courts of law the right to deprive people of liberty? In Swedish "public administration" (which is only an approximate English translation, by the by) does not encompass courts - it encompasses just that - public administrations, such as government departments and so on. What that paragraph ends up meaning with the paragraphs that follow it can be summed up: "The government cannot arbitrarily detain people, only courts can deprive someone of liberty, and this is how they may do it, and this is what rights accused have".



Here again, had you continued reading you would have seen an elaboration:

"Vid bedömandet av vilka begränsningar som får ske med stöd av första stycket skall särskilt beaktas vikten av vidaste möjliga yttrandefrihet och informationsfrihet i politiska, religiösa, fackliga, vetenskapliga och kulturella angelägenheter.

Som begränsning av yttrandefriheten och informationsfriheten anses icke meddelande av föreskrifter som utan avseende på yttrandes innehåll närmare reglerar visst sätt att sprida eller mottaga yttranden."



It won't be in English, but in Swedish it is quite clear, especially if one reads entire sections instead of just a paragraph like you did when you failed to read that thing about the courts and also the elaboration that followed the other paragraph.

Oh us stupid Americans. If only our Constitution was in Swedish. :rolleyes:

Oh us stupid Americans. If only our Constitution was in Swedish. :rolleyes:

It's not my fault you can't speak my language and I can speak yours (well, the latter is my fault, but I'm a European - I can't help learning languages), or that you somehow think our constitution is relevant to the shortcomings of yours.

Ah, again with the USA persecution complex - you take everything as attacks on your way of life. I don't find your constitution all that - I am voicing my opinion on how and why it isn't all that. If you wish to take that personally and want it to be about "hatred" go right ahead, because it is infeasible that the Constitution not be all that! Because you've been indoctrinated into loving it so, or what? I assume that's why, because... well, past experience.

I'm not going under any "persecution complex", just my knowledge of Fass



You're ignorant of how Supreme Court justices are appointed?

I'm quite well aware, I just like how you refer to elections as a "lottery", think that SCOTUS judges get added all the time, and that they can "change legislation".


And you seem to read things as an analphabet.

Aw, how cute, Fass is trying to be obtuse.



Look, there you go again! Reading things I never wrote.

You said that the COTUS wasn't up to modern standards since it couldn't be easily revised, only amended. If you want to hop around that, feel free.

They changed the constitution to allow the passage of a law they wanted to pass. The case is irrelevant to that, as it is illegal to pass laws for singular cases (you might want to look into getting something like that, this side of the Schiavo debacle) - he broke the law after it was passed, the law was not passed so that he himself could be prosecuted.

So they changed the rules, just like I said.


Well, that's what happens if you elect evil people. Perhaps you'd not elect them as easily.

Yep, Europe's never had a problem w/ that, right?

"Vid bedömandet av vilka begränsningar som får ske med stöd av första stycket skall särskilt beaktas vikten av vidaste möjliga yttrandefrihet och informationsfrihet i politiska, religiösa, fackliga, vetenskapliga och kulturella angelägenheter.

Som begränsning av yttrandefriheten och informationsfriheten anses icke meddelande av föreskrifter som utan avseende på yttrandes innehåll närmare reglerar visst sätt att sprida eller mottaga yttranden."



It won't be in English, but in Swedish it is quite clear, especially if one reads entire sections instead of just a paragraph like you did when you failed to read that thing about the courts and also the elaboration that followed the other paragraph.

In 1976, Saul Bellow won the Nobel Prize in Literature. Clearly, the committee wasn't thinking, or they would have chosen this masterpiece. Oh, if only I could be more like Sweden!

Ah, again with the USA persecution complex - you take everything as attacks on your way of life. I don't find your constitution all that - I am voicing my opinion on how and why it isn't all that. If you wish to take that personally and want it to be about "hatred" go right ahead, because it is infeasible that the Constitution not be all that! Because you've been indoctrinated into loving it so, or what? I assume that's why, because... well, past experience.

What, exactly, is "that?"

I feel if the constitution is not followed word by word, Anyone who is smart enough could make the constitution say whatever they are trying to pass. The founding fathers didnt write the constitution so we would follow it with a grain of salt.

I'm not going under any "persecution complex", just my knowledge of Fass

It's comforting to see your knowledge be as limited as always.

I'm quite well aware, I just like how you refer to elections as a "lottery", think that SCOTUS judges get added all the time, and that they can "change legislation".

Supreme Court justices are not elected. You claimed to know how they were appointed - here's how it happens: a vacancy is created by one of them dying or resigning. The random president and the random parliament that happen to sit when this random vacancy is presented get to appoint and approve the replacement. They do so choosing whichever one is going to have the opinions about what the constitution says that they like - and if they happen to be fortunate, two or three might die/resign and they can then stuff it with more people that are going to through their opinion be able to change what the constitution says - because the language of the constitution is so poor in so many places that Supreme Court justices get to be referees of what it says, because the meaning is so vague to be open to interpretation. And that, my dear, is very much a lottery of circumstance - from who happens die/resign, to who is president, to the majority in parliament, to the time this all happens. Random!

Aw, how cute, Fass is trying to be obtuse.

Cute, Kecibukia still reads like an analphabet, as we'll see shortly:

You said that the COTUS wasn't up to modern standards since it couldn't be easily revised, only amended. If you want to hop around that, feel free.

You just claimed I had claimed that it coudn't be amended, and now you admit I said that it could be amended. Which is it gonna be? Either I said it couldn't be, or I did. In fact, I did say it could be amended. So when you claimed I had said that it couldn't, you were lying, or what?

So they changed the rules, just like I said.

So, you're calling a constitutional change a constitutional change. Such perception!

Yep, Europe's never had a problem w/ that, right?

Sweden hasn't. :)

In 1976, Saul Bellow won the Nobel Prize in Literature. Clearly, the committee wasn't thinking, or they would have chosen this masterpiece. Oh, if only I could be more like Sweden!

The drafters of the Swedish constitution (many, many people) and the Constitution itself aren't eligible for the Nobel Prize in Literature. Read Alfred's will.

What, exactly, is "that?"

http://www.urbandictionary.com/define.php?term=all+that

I thought English was your native language. I'll try to recall that it isn't and use more standard expressions likely to have been taught in English as a Foreign Language classes.

The Åke Green case was settled on ECHR grounds, and that is a different matter not relevant to the Swedish constitution as the constitutional "case" (if one may call it that, seeing as the constitution had been revised just so that the law he was tried under would be constitutional) around it was not very complicated, which the Supreme Court also expressed (again, it does not have judicial review functions - that had been done before the law was passed by the Council on Legislation), but ECHR jurisdiction was deemed more relevant/pertinent/important than the Swedish constitution.

Um. Unless this translation (http://docs.google.com/View.aspx?docid=ahjqm32fn79x_ahjqqjkcw4tc) of the Swedish Supreme Court decision is grossly wrong, your characterization of the Åke Green case is inaccurate.

I quote from the opinion:

The intention was that the 2003 amendment to the law is to fulfil the conditions for restriction of freedom of expression following from our constitutional protection of this freedom as well as from the European Convention for the Protection of Human Rights and Fundamental Freedoms (Bill 2001/02:59 p. 34 ff.). The Supreme Court must, however, now adjudicate whether application of Chapter 16, Section 8 of the Penal Code in the case of ÅG should be set aside because such an application would be in contravention of the Constitution (cf. Decisions of the Swedish Supreme Court NJA 2000 p. 132 and 2005 p. 33) or of the European Convention (cf Bill 1993/94:117 p. 37 f. and Committee Report 1993/94:KU24 p. 17 ff.).

The opinion then proceeds to analyze whether the application of the law to ÅG would violate his freedom of religion or freedom of expression.

So, although I am loth to opine because I am so utterly ignorant of Swedish law, it would appear that (1) the Supreme Court of Sweden does have at least some role of judicial review and (2) the Åke Green case did involve a Swedish Constitutional question (or two).

Um. Unless this translation (http://docs.google.com/View.aspx?docid=ahjqm32fn79x_ahjqqjkcw4tc) of the Swedish Supreme Court decision is grossly wrong, your characterization of the Åke Green case is inaccurate.

The opinion then proceeds to analyze whether the application of the law to ÅG would violate his freedom of religion or freedom of expression.

"The statements referred to now cannot be regarded as constituting direct expressions of the texts in the Bible to which ÅG refers and must be judged as constituting offensive opinions about the group in general, even if he was not entirely categorical, but made certain reservations that not all homosexuals are such as he is criticising. ÅG has maintained that his statements were not directed at homosexuals as a group but that they are directed at the behaviour that the Bible, in his opinion, unequivocally describes as a sin. What stands out as the essential foundation of the statements is, however, the sexual orientation per se, even if he really meant the homosexuality practised. Nor can it be regarded as possible to draw a sharp distinction between the orientation as such and its expressions, which constitute what is central to that orientation. It may be regarded as clear that the statements exceed the boundaries of a factual and responsible discussion concerning homosexuals as a group. ÅG has wilfully spread these statements in his sermon before the congregation, conscious that they would be perceived as offensive. In the meaning of Chapter 16, Section 8 of the Penal Code, which has been expressed in the motives, the statements must therefore be regarded as having expressed contempt for homosexuals as a group."

That is a guilty verdict there - he has broken the law. They reached that easily. They also easily reached that:

"It is not obvious that the constitutional protection of freedom of expression would constitute an impediment to convicting ÅG as charged (cf Chapter 11 Section 14 of the Instrument of Government). Nor does the Constitution in other respects prevent him from being convicted under the provision on agitation against a national or ethnic group."

So basically, according to Swedish law he was guilty and the Swedish constitution did not offer protections for his statements, so they went on to the ECHR which they found did...

So, although I am loth to opine because I am so utterly ignorant of Swedish law, it would appear that (1) the Supreme Court of Sweden does have at least some role of judicial review and (2) the Åke Green case did involve a Swedish Constitutional question (or two).

... however, that is not a judicial review matter for the Swedish constitution, but in fact what the Swedish Constitution proscribes that they have to do when the case deals with freedom of expression: "In this context a reminder can be given of the express “instructions” in the Freedom of the Press Act and Fundamental Law on Freedom of Expression. This implies that a person who passes judgment on abuses of the freedom of the press or freedom of expression or who watches over these freedoms must bear in mind that they are fundamental to a free society, direct their attention more to the aim rather than the manner of presentation, and rather acquit than convict." In every case that deals with this issue they have to weigh these two interests against each other: the interest of the law maker to protect one of the groups mentioned in the law and the interest of the people for the widest possible freedom of expression. They did not review if the law was constitutional or not - that it is.

They reviewed whether his offence was still to be seen as protected by other provisions that the constitution demands they review before passing judgment in this case, and so they did. The law was not reviewed, thus no judicial review took place.

Leave it to Fass to turn a thread about the American Constitution into a thread about the Swedish one.

I thought English was your native language. I'll try to recall that it isn't and use more standard expressions likely to have been taught in English as a Foreign Language classes.
It's funny how the person who does not speak English as a first language still manages to be condescending to the person who does.
All right, Fass, I'll be honest: I didn't know what you meant by "all that" because you used it poorly. Instead of just using it once, you used it several times, when there were much better words, perhaps ones you have not yet learned. You never explained (in that post) what you considered to be "all that." Personally, I think the US Constitution is the cat's pajamas. That's just as meaningless as what you said. If you are honestly debating something, slang such as "all that" is probably out of place anyway, and if you do use it, be sure to back it up with substance. I did not say this, because I thought perhaps you would reply with an actual answer, instead of poor manners. Clearly that is not something I should expect.

Leave it to Fass to turn a thread about the American Constitution into a thread about the Swedish one.

I did not bring the Swedish constitution up. In fact, you did (http://forums.jolt.co.uk/showpost.php?p=13137462&postcount=42). I was criticising the USA one (as the topic of this thread is the USA constitution), and then you started quoting the Swedish one because apparently you thought it was relevant to the USA one - a relevance I questioned.

It's funny how the person who does not speak English

What? Cannot finish sentences?

What? Cannot finish sentences?

I did finish the sentence. I quickly edited it and replaced it with this, though, because my former post was much less polite.

I did not bring the Swedish constitution up. In fact, you did (http://forums.jolt.co.uk/showpost.php?p=13137462&postcount=42). I was criticising the USA one (as the topic of this thread is the USA constitution), and then you started quoting the Swedish one because apparently you thought it was relevant to the USA one - a relevance I questioned.
No, actually I did not (http://forums.jolt.co.uk/showpost.php?p=13137426&postcount=39).

It's funny how the person who does not speak English as a first language still manages to be condescending to the person who does.

Wait, so now that you've finished the sentence, you're changing what you wrote from "English is not my first language" to "English is my first language"? Which is the truth? Because, I saw what you had written before your edit and now I don't know which lie you want to present.

All right, Fass, I'll be honest:

Should've been that in your first edit, no?

I didn't know what you meant by "all that" because you used it poorly. Instead of just using it once, you used it several times, when there were much better words, perhaps ones you have not yet learned. You never explained (in that post) what you considered to be "all that." Personally, I think the US Constitution is the cat's pajamas. That's just as meaningless as what you said. If you are honestly debating something, slang such as "all that" is probably out of place anyway, and if you do use it, be sure to back it up with substance. I did not say this, because I thought perhaps you would reply with an actual answer, instead of poor manners. Clearly that is not something I should expect.

"Waah! I didn't understand English so now I'll pretend like it's your fault."

Wait, so now that you've finished the sentence, you're changing what you wrote from "English is not my first language" to "English is my first language"? Which is the truth? Because, I saw what you had written before your edit and now I don't know which lie you want to present.



Should've been that in your first edit, no?
Yes, I'm honest. I saw the error of my way and fixed the post.


"Waah! I didn't understand English so now I'll pretend like it's your fault."
It is your fault. How is it not your fault?

No, actually I did not (http://forums.jolt.co.uk/showpost.php?p=13137426&postcount=39).

You were the one who started quoting it to me and brought it up in our convo. Nevertheless, that I was to have turned this thread to be about the Swedish constitution is clearly another one of your bold-faced lies, especially as you were the one quoting it.

You were the one who started quoting it to me and brought it up in our convo. Nevertheless, that I was to have turned this thread to be about the Swedish constitution is clearly another one of your bold-faced lies, especially as you were the one quoting it.

:D Yes, my bold-faced lies. First of all, there is only one lie I have told on this thread, so plural is not really what you want to use. Second, that lie has been removed, willingly, by me.

Yes, I'm honest. I saw the error of my way and fixed the post.

Why should I trust you now when just a minute ago you were ready to lie to me and did so?

It is your fault. How is it not your fault?

It's not my fault because for all I know "you used it poorly" is another one of your lies to try to deflect from your own responsibilities.

I did not bring the Swedish constitution up. In fact, you did (http://forums.jolt.co.uk/showpost.php?p=13137462&postcount=42). I was criticising the USA one (as the topic of this thread is the USA constitution), and then you started quoting the Swedish one because apparently you thought it was relevant to the USA one - a relevance I questioned.

The topic of this thread was strict vs. broad construction of the U.S. Constitution.

You have wandered rather far from that topic.

:D Yes, my bold-faced lies. First of all, there is only one lie I have told on this thread, so plural is not really what you want to use. Second, that lie has been removed, willingly, by me.

Which, for all I know, is more lies. You see, I have no reason to believe you any more. You demonstrated clearly that you are willing to lie about anything - even something as ridiculous as what your native language is - to deflect from yourself. I have thus no more reason to converse with you since you have no credibility left and I cannot judge the veracity of anything you say.

Why should I trust you now when just a minute ago you were ready to lie to me and did so?
It just occurred to me: why didn't you reply to my first post, if you saw it? Was it because you believed English wasn't my first language? You possibly realized how silly you looked?
I admitted I was wrong, and told the truth. But I clearly should never have posted the first version, I can see I am going to regret it.



It's not my fault because for all I know "you used it poorly" is another one of your lies to try to deflect from your own responsibilities.
See above.

It's gotten to the point where this is little more than a smirk-off, trying to outdo each other in pretentiousness and condescending attitudes. The actual thread has something to do with constitutions. Sorry to all of those who wanted to discuss that, I'll stop.

The topic of this thread was strict vs. broad construction of the U.S. Constitution.

You have wandered rather far from that topic.

I asked you what my stance would be called because I can't choose any of the ones you supplied - instead of getting that answer, I got "but the USA constitution is so good! How can you think otherwise? The Swedish one says this!!! - even from you, the OP." Don't blame me for the fact that you yourself "wandered rather far from" the topic - it's so easy to do when the original poster encourages it.

It just occurred to me: why didn't you reply to my first post, if you saw it?

You do know that as you respond to one post, the page is reloaded? In one of the reloads I saw your original post where you claimed that English was not your native language. Once I had responded to another post (I do try to take them in turn) and the page was reloaded again, your original post was changed. And then it was changed again once you finished the sentence, now furnishing a lie - or the truth! I can't tell which, and you can't reliably tell me either any more. That's what happens when you lie.

It's gotten to the point where this is little more than a smirk-off, trying to outdo each other in pretentiousness and condescending attitudes. The actual thread has something to do with constitutions. Sorry to all of those who wanted to discuss that, I'll stop.

It's just gotten to the point your lying has been exposed, and now you're sorry it's so apparent that your credibility is shot.

I asked you what my stance would be called because I can't choose any of the ones you supplied - instead of getting that answer, I got "but the USA constitution is so good! How can you think otherwise? The Swedish one says this!!! - even from you, the OP." Don't blame me for the fact that you yourself "wandered rather far from" the topic - it's so easy to do when the original poster encourages it.

I see. I am responsible for leading you away from the topic. I'm so very sorry.

No doubt your pissing contest with New Limacon is also my fault. If I apologize for that, will you stop?

I see. I am responsible for leading you away from the topic. I'm so very sorry.

I'm saying that you shouldn't play innocent when you as the OP eagerly participate in this "leading away from the topic" (even so far as finding an English translation of a Swedish Supreme Court case, misunderstand it as you did anyway) instead of answering my question in my original post. Those are some mighty crocodile tears you'd have to shed to lament this.

No doubt your pissing contest with New Limacon is also my fault. If I apologize for that, will you stop?

I had stopped, but there's nothing like bringing things up to make that happen, eh, TCT? I wonder if you put fires out by stoking them and act surprised and innocent when they don't.

I see. I am responsible for leading you away from the topic. I'm so very sorry.

No doubt your pissing contest with New Limacon is also my fault. If I apologize for that, will you stop?

http://img136.imageshack.us/img136/7999/forgetitjakeee4.jpg

What would one be if one doesn't care for this quilt of guesswork either stance has had to become and realises that the document is hopelessly out of date and in serious need of an update to be up to snuff with modern standards?

One would probably be a non-American. In any case, many Americans would like to revise/update/rewrite the constitution. They just don't trust anyone but themselves to do it correctly.

One would probably be a non-American. In any case, many Americans would like to revise/update/rewrite the constitution. They just don't trust anyone but themselves to do it correctly.

I, for one will be the first to state that I would not trust our present representatives to write something as important as a new constitution.

the right to cast a ballot in equal weight to those of other citizens

Screw that 'right.'

"[T]he democratic principle of "one man, one vote," viewed against a background of voting masses numbering several millions, only serves to demonstrate the pitiful helplessness of the inarticulate individual, who functions at the polls as the smallest indivisible arithmetical (and not always algebraic) unit. He acts in total anonymity, secrecy and legal irresponsibility."

"Sometime in the coming century, people will rack their brains pondering how nations with tremendous scientific and intellectual achievements could have given uninstructed and untrained men and women the right to vote equally uninstructed and untrained people into responsible positions."

the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)

Who are some faceless bureaucrats to tell me how I bring up my children?

Screw that 'right.'

"[T]he democratic principle of "one man, one vote," viewed against a background of voting masses numbering several millions, only serves to demonstrate the pitiful helplessness of the inarticulate individual, who functions at the polls as the smallest indivisible arithmetical (and not always algebraic) unit. He acts in total anonymity, secrecy and legal irresponsibility."

"Sometime in the coming century, people will rack their brains pondering how nations with tremendous scientific and intellectual achievements could have given uninstructed and untrained men and women the right to vote equally uninstructed and untrained people into responsible positions."

1. You really should source your quotes.

2. Sorry that you feel that way is all there is to say.


Who are some faceless bureaucrats to tell me how I bring up my children?

Um. Exactly. You have a right to educate your own children -- protected by, even though not enumerated in, the U.S. Constitution.

There must be something wrong with the way I expressed myself, because you are the second person to misinterpret my list.

Unless you are objecting to the concept of minimum standards for education. In which case, faceless bureacrats have a duty to protect both the polity (in fact your comment is ironic in light of your first argument) and your children.

I see. I am responsible for leading you away from the topic. I'm so very sorry.

No doubt your pissing contest with New Limacon is also my fault. If I apologize for that, will you stop?

Again, sorry about that. It was late, I wasn't thinking...eh, I don't really have an excuse; I'm sorry all the same.

Now, let's get back to what we all came here for: constitutional law! Yeeaahh!

Screw that 'right.'

"[T]he democratic principle of "one man, one vote," viewed against a background of voting masses numbering several millions, only serves to demonstrate the pitiful helplessness of the inarticulate individual, who functions at the polls as the smallest indivisible arithmetical (and not always algebraic) unit. He acts in total anonymity, secrecy and legal irresponsibility."

"Sometime in the coming century, people will rack their brains pondering how nations with tremendous scientific and intellectual achievements could have given uninstructed and untrained men and women the right to vote equally uninstructed and untrained people into responsible positions."


Isn't there some risk in deeming one person so untrained as to be unvoteworthy, but not another? If I have formal training as a BS in accounting, shall I vote on fiscal matters, but not on abortion, as I am not a doctor? Should a Masters in Finance get 2 votes?

While I agree that "one man, one vote" has its difficulties, the alternative of a representative republic rarely produces results where those making the final vote on behalf of the population are really experts themselves. They are typically experts at getting elected (or as suitable clay for experts to turn them into something electable).

So, if only the trained and expert should vote on a matter, will we need separate leglisative bodies for each field of study?

I agree that an educated populace should, in principal, produce more sound lawmaking. But woulddn't a better solution be to open and encourage education, rather than disenfranchinse anyone who doesn't meet your standard?

I know this will probably scare anyone away from claiming they are a strict constructionist, but I want to move the debate along if possible.

As a "strict constructionist," how do you deal with the following:
(1) the 14th Amendment
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
(3) the 9th Amendment
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

Do you really wish to insist that none of these are protected by the Constitution?
Yes I do.

Whether they should be is a different question, but I think its clear they are not so protected.

The problem with allowing broad interpretation is it makes the findings of courts less predictable, and thus introduces unfairness into legal proceedings.

Plus (and this is the biggie), intent is unknowable.

...................
I was thinking along the textualist lines ....

I wonder if it would be at all possible to write a single, simple rule, that was so clearly phrased that no judicial interpretation was ever necessary? 10-20 words?

I don't think so. All rules need interpretation, and by that interpretation they change and evolve. That way judges have de facto legislative power, especially when the law in question is old.

But a convincing argument for textual interpretations of any law would be interesting to hear, if only to widen the horizon.

Yes I do.

Whether they should be is a different question, but I think its clear they are not so protected.

You only dealt with one of five points and that one inadequately. Merely saying that something is "clear" doesn't make it so. Scores of Supreme Court precedents disagree with you. And as I said, the 14th Amendment and the 9th Amendment contradict this position.

The problem with allowing broad interpretation is it makes the findings of courts less predictable, and thus introduces unfairness into legal proceedings.

Fair point. But predictability is neither the only goal of the courts nor is it sufficient for fairness. Granted, it is important, but it doesn't control.

Plus (and this is the biggie), intent is unknowable.

*sigh* Not this shit again. It is not clear how this is particularly relevant to the question at hand.

BTW, are you truly embracing strict constructionism or are you merely being contrary?

Regardless, thanks for injecting some life into this thread. Apparently at least 13 posters support strict constructionism, but you are the first to even start defending it.

This isn't completely relevant, but I thought it might be interesting to people here.
Link (http://www.amoreperfectconstitution.com/23_proposals.htm)

The author offers 23 proposals on how to improve the Constitution. Some make sense, others, not so much.

I wonder if it would be at all possible to write a single, simple rule, that was so clearly phrased that no judicial interpretation was ever necessary? 10-20 words?

I don't think so. All rules need interpretation, and by that interpretation they change and evolve.

Agreed. You make a good point.

That way judges have de facto legislative power, especially when the law in question is old.

I'm not sure I would call it a legislative power.

But a convincing argument for textual interpretations of any law would be interesting to hear, if only to widen the horizon.

Agreed. Although I think a strict textualism is rather absurd, I'd love to see someone defend it.

You only dealt with one of five points and that one inadequately. Merely saying that something is "clear" doesn't make it so. Scores of Supreme Court precedents disagree with you. And as I said, the 14th Amendment and the 9th Amendment contradict this position.
As a non-American, I'll actually have to look up those amendments.. But okay, I'll go through point by point.
(1) the 14th Amendment
As I read the 14th Amendment, I wonder why you included it. As a strict constructionist, I oppose judicial creativity in intrepreting the constitution, but I do not oppose legislative action. Legal changes should go through the legislative branch of the government. As such, there's nothing inherently wrong with amendments.

Are you referring to the supposed violation of Article V?
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
Clearly I would disagree with those decisions.
(3) the 9th Amendment
Under strict interpretation, the 9th amendment isn't even necessary. Nothing should ever be "construed".
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
You know how I feel about intent. And even if intent is knowable, I don't see why it should matter.
Fair point. But predictability is neither the only goal of the courts nor is it sufficient for fairness. Granted, it is important, but it doesn't control.
It may not be sufficient, but it is necessary. Allowing judicial discretion is and end-run around section 9 of Article I. "No bill of attainder or ex post facto Law shall be passed." By allowing the courts to add or remove sections of the law as they apply to past events (the case in question) is an ex post facto precedent. Granted, section 9 specifically limits the power of congress, not the judiciary. That the powers of the judiciary are uncertain is why we have this discussion.
BTW, are you truly embracing strict constructionism or are you merely being contrary?
Judicial fairness is something about which I genuinely care. The current content of the law needs to be knowable with certainty.

As a non-American, I'll actually have to look up those amendments.. But okay, I'll go through point by point.

Thank you.

As I read the 14th Amendment, I wonder why you included it. As a strict constructionist, I oppose judicial creativity in intrepreting the constitution, but I do not oppose legislative action. Legal changes should go through the legislative branch of the government. As such, there's nothing inherently wrong with amendments.

Are you referring to the supposed violation of Article V?

No. I'm referring to the protection of fundamental liberty expressed in the Due Process Clause of Article I of the Fourteenth Amendment.

Clearly I would disagree with those decisions.

Do you have a reason for disagreeing with scores of decisions that reach over 120 years or do you simply just not like their outcome?

Under strict interpretation, the 9th amendment isn't even necessary. Nothing should ever be "construed".

Wishing away the 9th Amendment doesn't make it so. How can you strictly construe the rest of the Constitution but insist that the 9th Amendment is meaningless?

You know how I feel about intent. And even if intent is knowable, I don't see why it should matter.

Legislative intent is rather different and rather more knowable than intent in other circumstances, so your standard position hardly applies.

But I am not saying that intent should control, only that it is a factor. And here it is clear the Founders intended the Constitution to protect more than merely enumerated rights.

It may not be sufficient, but it is necessary. Allowing judicial discretion is and end-run around section 9 of Article I. "No bill of attainder or ex post facto Law shall be passed." By allowing the courts to add or remove sections of the law as they apply to past events (the case in question) is an ex post facto precedent. Granted, section 9 specifically limits the power of congress, not the judiciary. That the powers of the judiciary are uncertain is why we have this discussion.

We've been over this ground before. You have a fundamental misunderstanding of what constitutes an ex post facto law. Read Calder v. Bull (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=3&invol=386), 3 U.S. 386, 390-91 (1798) (emphasis added):

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute of limitations; or to excuse acts which were unlawful, and before committed, and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME. The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government.

Moreover, there is a difference between a certain amount of predictability, which is necessary to legal system and absolute predictability, which is neither possible nor necessarily desirable.

Judicial fairness is something about which I genuinely care. The current content of the law needs to be knowable with certainty.

It may be something about which you care and I laud you for that, but it is not something you appear to be particularly knowledgeable about.

Absolute certainty in the law is no more possible than absolute certainty in knowing intent.

Moreover, absolute certainty is not necessarily desirable as the law should be able to evolve over time. Plessy v. Ferguson (http://laws.findlaw.com/us/163/537.html), 163 U.S. 537 (1896), should not have remained law, it was rightfully overturned in Brown v. Board of Education (http://laws.findlaw.com/us/347/483.html), 347 U.S. 483 (1954). Although there is great value in stability and thus courts apply the principle of stare decisis, there must be room for correction of erroneous rulings.

1. You really should source your quotes.

Erik von Kuehnelt-Leddihn

2. Sorry that you feel that way is all there is to say.

I think the franchise should be limited to those who pass political I.Q. tests. i.e., only to those who are demonstrably competent and aware of how government works/is supposed to work. It would not distinguish between left, right, or center, but between, say, those who know the Bill of Rights and those who do not.

Um. Exactly. You have a right to educate your own children -- protected by, even though not enumerated in, the U.S. Constitution.

Yes.

There must be something wrong with the way I expressed myself, because you are the second person to misinterpret my list.

My apologies.

Unless you are objecting to the concept of minimum standards for education.

I am.

In which case, faceless bureacrats have a duty to protect both the polity (in fact your comment is ironic in light of your first argument) and your children.

It sets a dangerous precedent, IMO.

No. I'm referring to the protection of fundamental liberty expressed in the Due Process Clause of Article I of the Fourteenth Amendment.
Okay.

And I admit I'm still at a loss. Though I'm a strict constructionist I don't think the constitution is immutable. Amendments are exactly the right way to go about changing the way the constitution reads.

Every judicial decision that interpreted the constitution broadly should instead have been an amendment if that was the outcome you wanted. As such, I don't see why I'd object to any constitutional amendment.
Do you have a reason for disagreeing with scores of decisions that reach over 120 years or do you simply just not like their outcome?
Sure. They were broad interpretations. They reached conclusions that weren't necessarily true based on the content of the constitution.

Rights are legal constructs. I don't see how anyone could credibly argue that any right exists without having been enumerated in the constitution (or even statute).
Wishing away the 9th Amendment doesn't make it so. How can you strictly construe the rest of the Constitution but insist that the 9th Amendment is meaningless?
I'm not wishing it away; I'm saying it's meaningless.

Phrased another way, the Ninth Amendment says, "Of any right not enumerated in the constitution, should it exist, the failure of the constitution to enumerate that right does not constitute the elimination or disparagement of that right."

And that's all well and good, but that's only meaningful if these other rights actually exist. And whether they do can only be found somewhere else in law. If they're not listed there, on what basis can anyone claim that they exist?
Legislative intent is rather different and rather more knowable than intent in other circumstances, so your standard position hardly applies.
Doesn't it?

You're attributing near-legislative value to points not included in the legislation. And, legislation, like all text, means what it says. What you describe as legislative intent could well have been irrelevant poltical wrangling, could it have not? And how could we tell the difference?

The simplest solution is simply to ignore it constistently, and that encourages legislators to write their laws better.
But I am not saying that intent should control, only that it is a factor. And here it is clear the Founders intended the Constitution to protect more than merely enumerated rights.
It's clear they intended it be able to do so. That's clear from the amendment. But it's not clear that they perceived those other rights to exist, which would be necessary for them to be protected.
We've been over this ground before. You have a fundamental misunderstanding of what constitutes an ex post facto law. Read Calder v. Bull (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=3&invol=386), 3 U.S. 386, 390-91 (1798)
Thanks for that great citation. I now at least understand why you think your position has merit.

But I still disagree. The distinction between ex post facto and other retrospecitve laws described in that decision is entirely arbitrary. Furthermore, it's defended based on whether those sorts of laws are just, which I would consider entirely irrelevant to whether they are fair. The decision asserts that such other retrospective laws might be proper or necessary, and while I have no idea what might be meant by "proper", I can only object to the assertion that they are "necessary". They're certainly not logically necessary, and while they may be necessary to comply with some overarching principle (like justice), they are fundamentally incompatible with fairness. And fairness and justice are generally considered the basis of western law (from Dworkin - though Dworkin does a lousy job of defining justice).

Furthermore, the decision makes this claim:

"There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME."

Apparent? Aside from being a terrible standard, how is that apparent?

Let me provide an example (I'm usually bad at examples - I'm a broad concept kind of guy - but I'll try). Say running a red light is a crime. And any negative consequences of your commission of that crime are thus your responsibility.

So, further suppose that in running that red light, you hit me and total my car. If the court then declares "retrospectively" that your actions were lawful, you are suddenly now not necessarily responsible for the damage to my car. I acted, expecting you to stop, and knowing that if you didn't you would be held accountable. But now you're not.

In addition to damaging the deterrent force of law, this decision also completely screwed me over.
Moreover, there is a difference between a certain amount of predictability, which is necessary to legal system and absolute predictability, which is neither possible nor necessarily desirable.
Absolutely its desirable. I insist a maximum level of predictability is necessary to satisfy fairness.
It may be something about which you care and I laud you for that, but it is not something you appear to be particularly knowledgeable about.

Absolute certainty in the law is no more possible than absolute certainty in knowing intent.
When I am about to act, I need to know, assuming my knowledge of the circumstances is complete, is my behaviour legal. Naturally I would be responsible for the gaps in my own knowledge; those would not be the fault of the legal system. And I also need to know that about the behaviour of others, because my behaviour may well be based upon my awareness of their behaviour's illegality.
Moreover, absolute certainty is not necessarily desirable as the law should be able to evolve over time. Plessy v. Ferguson (http://laws.findlaw.com/us/163/537.html), 163 U.S. 537 (1896), should not have remained law, it was rightfully overturned in Brown v. Board of Education (http://laws.findlaw.com/us/347/483.html), 347 U.S. 483 (1954). Although there is great value in stability and thus courts apply the principle of stare decisis, there must be room for correction of erroneous rulings.
With strict interpretation, you should get far fewer erroneous rulings. Plus, I oppose judicial precedent, so erroneous rulings should have no impact beyond their own case.

Okay.

And I admit I'm still at a loss. Though I'm a strict constructionist I don't think the constitution is immutable. Amendments are exactly the right way to go about changing the way the constitution reads.

Every judicial decision that interpreted the constitution broadly should instead have been an amendment if that was the outcome you wanted. As such, I don't see why I'd object to any constitutional amendment.

I'm not expecting you to be opposed to the 14th Amendment or to somehow believe the Constitution cannot be amended. I am arguing rather about the meaning and impact of the Due Process Clause of the 14th Amendment (and the 5th Amendment). The liberty protected by the Due Process Clause includes substantive fundamental rights that cannot be violated.

Perhaps the following from Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html), 505 U.S. 833 (1992) will explain what I am getting at:

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147 -148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68 -92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

... It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94 -99 (1987); in Carey v. Population Services International, 431 U.S. 678, 684 -686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481 -482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id. at 486-488 (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on due process), id. at 500-502 (Harlan, J., concurring in judgment) (same), id. at 502-507, (WHITE, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399 -403 (1923).

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds).

Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494 U.S. 210, 221 -222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).

The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:


"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has, of necessity, been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint." Poe v. Ullman, 367 U.S., at 542 (dissenting from dismissal on jurisdictional grounds).

See also Rochin v. California, supra, at 171-172 (Frankfurter, J., writing for the Court) ("To believe that this judicial exercise of judgment could be avoided by freezing `due process of law' at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines, and not for judges").

Sure. They were broad interpretations. They reached conclusions that weren't necessarily true based on the content of the constitution.

Rights are legal constructs. I don't see how anyone could credibly argue that any right exists without having been enumerated in the constitution (or even statute).

It doesn't do us much good to talk about these cases in the abstract (which is my fault. I suggest we discuss Griswold v. Connecticut (http://laws.findlaw.com/us/381/479.html), 381 U.S. 479 (1965), in which the Court held that the Constitution protected an unemerated right to privacy.

The philosophy of the Constitution, and particularly the Ninth Amendment, is that rights are not merely legal constructs which are given by government. There are some fundamental liberties that are retained by the people and cannot be violated.

I'm not wishing it away; I'm saying it's meaningless.

Phrased another way, the Ninth Amendment says, "Of any right not enumerated in the constitution, should it exist, the failure of the constitution to enumerate that right does not constitute the elimination or disparagement of that right."

And that's all well and good, but that's only meaningful if these other rights actually exist. And whether they do can only be found somewhere else in law. If they're not listed there, on what basis can anyone claim that they exist?

How can you claim to strictly construe a document and then blithely dismiss part of that document as meaningless? You clearly aren't being true to the text.

As to what the Ninth Amendment means, I turn to Justice Goldberg, concurring, in Griswold, 381 U.S. at 488, 491, 492:

''The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. . . . 'And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.'

Doesn't it?

You're attributing near-legislative value to points not included in the legislation. And, legislation, like all text, means what it says. What you describe as legislative intent could well have been irrelevant poltical wrangling, could it have not? And how could we tell the difference?

The simplest solution is simply to ignore it constistently, and that encourages legislators to write their laws better.

I'm talking about legislative history as a component, neither necessary or sufficient, for interpreting law. Whether legislative intent is meaningful and can be determined with any certainty will vary from case to case. But that doesn't mean it is never meaningful and/or can never be determined.

As to the Ninth Amendment, the legislative history is clear. I turn again to Justice Goldberg in Griswold, 381 U.S. at 488-90 (footnotes omitted):

The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights 3 could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected. 4

In presenting the proposed Amendment, Madison said:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]." I Annals of Congress 439 (Gales and Seaton ed. 1834).

Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:

"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people." II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891).

He further stated, referring to the Ninth Amendment:

"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others." Id., at 651.

These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people. 5

It's clear they intended it be able to do so. That's clear from the amendment. But it's not clear that they perceived those other rights to exist, which would be necessary for them to be protected.

So, at least in this case, the legislative intent is crystal clear. Then one should not interpret the document in a way that makes that intent absurd.

It is clear that they perceived other rights to exist. They specifically say there are other rights retained by the people that are not listed.

*snip*

I'll deal with the ex post facto argument later. I don't have the time at present.


Absolutely its desirable. I insist a maximum level of predictability is necessary to satisfy fairness.

When I am about to act, I need to know, assuming my knowledge of the circumstances is complete, is my behaviour legal. Naturally I would be responsible for the gaps in my own knowledge; those would not be the fault of the legal system. And I also need to know that about the behaviour of others, because my behaviour may well be based upon my awareness of their behaviour's illegality.

What constitutes a "maximum level of predictability"? You seem to agree that absolute predictability is not possible. I submit that the doctrine of stare decisis provides sufficient predictability, while allowing for corrections necessary for fairness and justice.

With strict interpretation, you should get far fewer erroneous rulings.

Um. How do you reach that conclusion? Judges are without flaws if they follow strict construction?

For example, how was Plessy v. Ferguson (http://laws.findlaw.com/us/163/537.html), 163 U.S. 537 (1896)not in line with strict construction?

Plus, I oppose judicial precedent, so erroneous rulings should have no impact beyond their own case.

Bizarre. Precedent increases predictability.

If a ruling on similar facts can be decided differently, how is there predictability?

EDIT: Upon reflection I don't think you are really advocating strict construction of the existing U.S. Constitution, but rather you are advocating an all-together different constitutional system.

Thanks for that great citation. I now at least understand why you think your position has merit.

You are welcome. (I think. :p)

But I still disagree. The distinction between ex post facto and other retrospecitve laws described in that decision is entirely arbitrary. Furthermore, it's defended based on whether those sorts of laws are just, which I would consider entirely irrelevant to whether they are fair. The decision asserts that such other retrospective laws might be proper or necessary, and while I have no idea what might be meant by "proper", I can only object to the assertion that they are "necessary". They're certainly not logically necessary, and while they may be necessary to comply with some overarching principle (like justice), they are fundamentally incompatible with fairness. And fairness and justice are generally considered the basis of western law (from Dworkin - though Dworkin does a lousy job of defining justice).

You can disagree all you want but that case states not just an opinion on what should or should not be allowed in terms of retroactive laws but also defines what an ex post facto law is.

It is one thing for you to object to all retroactive laws. That is a defensible (even though I think foolish) position. It is another thing to call all retroactive laws ex post facto laws. Calder v. Bull sets out the definition of ex post facto laws. It is no more arbitrary or less definitive than a dictionary definition.

You aren't really making an argument here. You are simply misusing the term.

Furthermore, the decision makes this claim:

"There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME."

Apparent? Aside from being a terrible standard, how is that apparent?

You really don't see the great difference beween making an unlawful act retroactively lawful and making an innocent action retroactively a crime? I think if you think about it the difference really is great and apparent.

Again, it is one thing for you to object to laws that make unlawful acts retroactively lawful. It is an altogether different thing to say such laws are just as unfair as laws that make innocent acts retroactively criminal.

Let me provide an example (I'm usually bad at examples - I'm a broad concept kind of guy - but I'll try). Say running a red light is a crime. And any negative consequences of your commission of that crime are thus your responsibility.

So, further suppose that in running that red light, you hit me and total my car. If the court then declares "retrospectively" that your actions were lawful, you are suddenly now not necessarily responsible for the damage to my car. I acted, expecting you to stop, and knowing that if you didn't you would be held accountable. But now you're not.

In addition to damaging the deterrent force of law, this decision also completely screwed me over.

1. At most, your example shows that it is possible for a retroactive law to be unfair, even if it isn't an ex post facto law.

Just because a law is retroactive and/or unfair doesn't make it an ex post facto law.

Similarly, just because one retroactive law could be unfair doesn't make all retroactive laws unfair.

2. In your example, what is key is not whether or not the person that ran the red light is guilty of a crime, but rather whether or not the person that ran the red light is responsible for damages caused when he hit you. The two things are not necessarily linked, so there isn't necessarily any unfair impact of the retroactive law.

3. This is somewhat restating a point I made above, but Calder v. Bull doesn't say that all retroactive laws are good. It merely recognizes that a retroactive law is not necessarily wrong per se.

Let me provide an example (I'm usually bad at examples - I'm a broad concept kind of guy - but I'll try). Say running a red light is a crime. And any negative consequences of your commission of that crime are thus your responsibility.

So, further suppose that in running that red light, you hit me and total my car. If the court then declares "retrospectively" that your actions were lawful, you are suddenly now not necessarily responsible for the damage to my car. I acted, expecting you to stop, and knowing that if you didn't you would be held accountable. But now you're not.

In addition to damaging the deterrent force of law, this decision also completely screwed me over.

You deeply and profoundly confuse the criminal justice system with the civil justice system.

If I commit a criminal act that in no way provides you with restitution for your damaged car. My being prosecuted for running a red light gets YOU nothing. Your ability to recover damages is a matter for civil liability, not criminal guilt.

Whether or not I committed a crime does not necessarily have any baring on whether I acted negligently or not. One can act negligently and yet be fully within the bounds of the law.

One can also act illegally, yet without negligence. The fact that the law may retroactively decide I did not commit a CRIMINAL act in no way shape or form has any baring on the question of whether a reasonable person in my place at that time would have acted in that fashion.

And since the question of negligence is not "did I break the law" but rather "did I deviate from the standard of care a normally prudent person would exercise in those circumstances at that time", whether my actions are criminal or not does not in any way impact your ability to recover.

And since the question of negligence is not "did I break the law" but rather "did I deviate from the standard of care a normally prudent person would exercise in those circumstances at that time", whether my actions are criminal or not does not in any way impact your ability to recover.
A normally prudent person would obey traffic law, because traffic law is the only set of rules of which the rest of the drivers can reasonably expect you to be aware. A traffic law violation guarantees you did not act prudently.

Conversely, failute to violate traffic law constitutes complete and total compliance with the known set of rules. How is that anything other than prudent?


...
Don't worry, Cat-Tribe. I'll get back to you.

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Don't worry, Cat-Tribe. I'll get back to you.

No worries. I dumped a lot on you. Take your time. :cool:

Currently there are 16 people who have voted for strict constructionism.

But only 1 person so far has explained why he/she is a strict constructionist or defend strict contructionism.

Come on people, let's hear from you.

From time to time during legal arguments, some NSGers will claim to support "strict construction" of the U.S. Constitution.

Law.com provides the following definition of strict construction:

strict construction
(narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

Most commonly strict construction is associate with the argument that things not explicitly stated by the text of the Constitution -- abortion, for example-- are not protected by the Constitution.

Well, that's nonsense because the Constitution doesn't primarily guarantee that the government won't do things. It gives the government certain limited powers, such as the power to regulate (i.e. make regular, not caret blanche to legislate) trade between states and with other nations. The federal government can't ban abortions, the power was never granted. But it can prohibit the states from imposing abortion bans just under the commerce clause because it would create a disparity in available medical care (irregularity) between the states.

But self-identified strict constructionists are almost always anti-abortion. So the whole "Strict Constructionist" doctrine is nothing more than an excuse to do stuff that is indefensible by any rational means. Like how homophobes always have to invoke the Bible to justify their intolerance, racists always invoke their strict constructionism to oppose the civil rights act.

Well, that's nonsense because the Constitution doesn't primarily guarantee that the government won't do things. It gives the government certain limited powers, such as the power to regulate (i.e. make regular, not caret blanche to legislate) trade between states and with other nations. The federal government can't ban abortions, the power was never granted. But it can prohibit the states from imposing abortion bans just under the commerce clause because it would create a disparity in available medical care (irregularity) between the states.

Actually it is the Fourteenth Amendment that empowers federal courts to protect persons from violations of their liberty by states.

Whether Congress can pass a federal law regarding abortion under the Commerce Clause is an open question -- although SCOTUS (and ironically many so-called states' rights conservatives) had no problem with the Partial-Birth Abortion Ban Act.

But self-identified strict constructionists are almost always anti-abortion. So the whole "Strict Constructionist" doctrine is nothing more than an excuse to do stuff that is indefensible by any rational means. Like how homophobes always have to invoke the Bible to justify their intolerance, racists always invoke their strict constructionism to oppose the civil rights act.

Yep. I agree. So-called "strict constructionism" seems more to serve an end rather than being an acutally preferred means.

EDIT: It is notworthy that many posters have voted that they believe in strict construction, but only one actually tried to defend that position -- and I don't think he is really a strict constructionist, but rather someone who believes in a different Constitution altogether.

I'm not expecting you to be opposed to the 14th Amendment or to somehow believe the Constitution cannot be amended. I am arguing rather about the meaning and impact of the Due Process Clause of the 14th Amendment (and the 5th Amendment). The liberty protected by the Due Process Clause includes substantive fundamental rights that cannot be violated.
Now I understand. The 14th amendement makes perfect sense, but the courts have interpreted it in such a way that they basically ignore the phrase "without due process of law". As such, the amendment has come to prohibit the deprivation of liberty, generally, regardless of due process.

Yes, I would disagree with that finding, and the decisions that stem from it. The amendment is clearly written to allow deprivation of liberty through due process of law, but judicial misintepretation ignores that.

What would one be if one doesn't care for this quilt of guesswork either stance has had to become and realises that the document is hopelessly out of date and in serious need of an update to be up to snuff with modern standards?
Sorry if someone already mentioned this, but this would make one Swedish, and therefore not really in the loop of this conversation. But thanks for stopping by. Help yourself to some of the Swedish meatballs (from IKEA!) at the buffet.

Leave it to Fass to turn a thread about the American Constitution into a thread about the Swedish one.

Always making himself the center of attention. ;)

I am firmly in the "living document" camp. Maybe this is because I am something of an iconoclast and, therefore, do not accept the "sacredness" of a document as an object -- something that cannot be subject to review, critique and revision, preferably on a regular basis to make sure it meets the practical needs of current society.

Someone in this thread said that "intent is unknowable." I disagree with that, especially in the case of the US Constitution. I believe the framers of the Constitution made their intent abundantly clear in their writings, letters, and in the Constitution itself. The philosophies -- what I think of as "first principles" -- upon which they based the structure of government described in the Constitution are as clear as day. I believe that, by reading all of the framers' writings on the subject, we can also conclude with confidence that they intended the Constitution to be revisable.

If we accept the first principles established by the framers of the Constitution as our guides, then we may revise the Constitution any number of times without changing its fundamental nature, so long as our revisions are in keeping with those principles. An amendment to enshrine a right to privacy (which I think is not necessary, but just as an example) would be in keeping with those principles because it would limit the government's power over the individual. An amendment to ban flag burning would not be because it would restrict the individual's ability to speak against government power.

Now, of course, if someone does not accept the first principles of the framers of the Constitution (and the founders of the nation), then they might have a problem with their intent, but that doesn't mean their intent is unknowable. It's just not what some people want it to be.

Many other people have argued about the language of the Constitution not being clear. I have never understood why people have a problem understanding the US Constitution. To my eye, it is the clearest, most obfuscation-free and ambiguity-free legal document ever written, short of some business contracts. I have never yet seen anyone claim that the Constitution is unclear or ambiguous unless they are trying to bend it to promote some social or political agenda of their own, or trying to use it to carry a weak argument in court.

And to Llewdor, I appreciate your attempt to understand the US Constitution, as a non-US citizen, and I'm not going to criticize you at all. I just want to point out that your statement that "Nothing should be construed" strikes me as the very heart of strict constructionist thinking. It's interesting because it suggests that the strict-constructionist view has nothing at all to do with the US Constitution or US history or the intent of the framers, but rather is an inherent viewpoint that some people bring to the debate, all on their own.

If so, then the entire strict constructionist versus living document debate is really just a clash of personalities.

It doesn't do us much good to talk about these cases in the abstract (which is my fault. I suggest we discuss Griswold v. Connecticut (http://laws.findlaw.com/us/381/479.html), 381 U.S. 479 (1965), in which the Court held that the Constitution protected an unemerated right to privacy.
And they were wrong.

In NAACP v. Alabama, 357 U.S. 449, 462, the court protected the right to privacy with regard to membership in association because the lack of that privacy was a de facto limitation on the freedom to associate. In order to protect the freedom to associate, the privacy of that association also needed to be protected. That ruling makes perfect sense, but it does not further require that privacy is protected generally. In fact, that NAACP v. Alabama needed to point out that privacy needed to be protected in order to protect the freedom to associate tells me that privacy is not otherwise protected. Later findings (like Griswold) are therefore even more obviously in error once you examine earlier rulings.

Griswold v. Connecticut goes on to point out that the right to privacy is consistent with, among other things, the third and fifth amendments. I don't see how that's even vaguely relevant; the court is offering justification for the decision they've reached, but the justification is a lot of persuasive nonsense. Just because the right to privacy is consistent with the constitution does not mean the right is protected by the constitution, and that's the crux of the finding here.
The philosophy of the Constitution, and particularly the Ninth Amendment, is that rights are not merely legal constructs which are given by government. There are some fundamental liberties that are retained by the people and cannot be violated.
I'd love it if that were written down in the constitution somewhere.
How can you claim to strictly construe a document and then blithely dismiss part of that document as meaningless? You clearly aren't being true to the text.
Sure I am. You might think I'm not being true to the spirit of the text, but texts don't have spirits, so that doesn't matter.

I think the ninth amendment is really cleverly written. It's a hedge against possible rights which might not exist at the time of writing. Since perfect knowledge even of the relevant body of law might not be possible, the amendment allows for possible extant rights without requiring that they actually exist (or exist yet).
As to what the Ninth Amendment means, I turn to Justice Goldberg, concurring, in Griswold, 381 U.S. at 488, 491, 492:
I'm going to have to pick out bits of that to point out specific errors.
''The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights
As I've pointed out, the language reveals no such thing. It is a very cleverly written hedge against possible unenumerated rights (or, given the verb tense, presently unenumerated rights).
To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment
Or to assert that the right doesn't exist, a possibility Justice Goldberg seems to be ignoring.
Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment.
Well of course it would. But for that to matter there would have to exist "fundamental rights...not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution" , and that is by no means certain.
Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government.
Nice strawman, Goldberg.
Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments...
I've already refuted that.
...and an intent that the list of rights included there not be deemed exhaustive.
I'll concede that the ninth amendment shows that the list of rights included in the first eight amendments was believed by the authors of the ninth amendment to be not necessarily exhaustive. To claim that it wasn't actually exhaustive is a stretch.
And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.
No, again. See above.
'In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.'
Except, of course, liberty is only protected by the fourteenth amendment in the absence of due process of law. The general protection of liberty is a product of judicial imagination.
I'm talking about legislative history as a component, neither necessary or sufficient, for interpreting law. Whether legislative intent is meaningful and can be determined with any certainty will vary from case to case. But that doesn't mean it is never meaningful and/or can never be determined.
Can it be interpreted by laypeople who live under the law? With certainty?

I don't think so.

Plus, legislative intent only matters if you don't trust legislators to write the laws to say what they mean. And if that's true, you have bigger problems.

The goal here appears to be to allow the will of the people (aka, common sense) to shape the law subtly over time so that it more closely conforms to the people's opinion as to what the law should be, or what is right and good. But if that's the case, why isn't that explicitly wirtten down anywhere?
As to the Ninth Amendment, the legislative history is clear.

-snip Goldberg-
Again, I don't see why it matters. The law is what the law says it is. Any other source needs justification, and I don't see it.
These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.
Not all possible rights, no. Whether the first eight amendments axhaust all extant rights isn't stated.

What are fundamental rights, anyway?
So, at least in this case, the legislative intent is crystal clear. Then one should not interpret the document in a way that makes that intent absurd.
It's not absurd, it's just a much finer point than any subsequent judges seem to think he was making.
It is clear that they perceived other rights to exist. They specifically say there are other rights retained by the people that are not listed.
Nothing in the text of the amendment or the quoted Madison passages says that (and I'm being generous here in even considering the quoted Madison passages - the average citizen doesn't have ready access to the musings of a legislator two centuries past).

I am firmly in the "living document" camp. Maybe this is because I am something of an iconoclast and, therefore, do not accept the "sacredness" of a document as an object -- something that cannot be subject to review, critique and revision, preferably on a regular basis to make sure it meets the practical needs of current society.

Someone in this thread said that "intent is unknowable." I disagree with that, especially in the case of the US Constitution. I believe the framers of the Constitution made their intent abundantly clear in their writings, letters, and in the Constitution itself. The philosophies -- what I think of as "first principles" -- upon which they based the structure of government described in the Constitution are as clear as day. I believe that, by reading all of the framers' writings on the subject, we can also conclude with confidence that they intended the Constitution to be revisable.

Well, I for one believe that the Constitution should be interpreted literally. Not because it's sacred, but because the failure to do so leads to a lot of corruption.

e.g. The current war in Iraq, the war in Vietnam. Korea...

The Constitution says that only Congress can declare war, yet we find ourselves in wars without Congress doing so because people aren't following the Constitution. If people think it's really important to allow the President to wage war without Congressional declaration, then they should get their shit together and amend it.

If the President thinks it his duty to do whatever is necessary to "protect the American people," regardless of the Constitutionality of his actions, fine. But he should be similarly stalwart when dragged before the firing squad for treason.

The Constitution is law. If you don't like a law you change it. Just because a law is bad doesn't mean that violating it is legal.

One could take Strict Constructionism to the point where you could argue that there should never have been Amendments. Can I assume there is no one here in favor of slavery?

Now I understand. The 14th amendement makes perfect sense, but the courts have interpreted it in such a way that they basically ignore the phrase "without due process of law". As such, the amendment has come to prohibit the deprivation of liberty, generally, regardless of due process.

Yes, I would disagree with that finding, and the decisions that stem from it. The amendment is clearly written to allow deprivation of liberty through due process of law, but judicial misintepretation ignores that.

No. The judicial interpretation (which conforms to the legislative intent) is that (1) there are certain fundamental rights included in the liberty from which we are protected from deprivation through due process and (2) statutes do not necessarily constitute due process -- they must in the case of a fundamental right serve a compelling state interest and be narrowly tailored to carry out that interest. Thus, there is a substantive component to the Due Process Clause. This component is both found in the text and in the legislative history. Not to mention 120 years or so of court precedent.

Note that, without the interpretation of the 14th Amendment as protecting fundamental liberties, none of the Bill of Rights would apply to the states. No free speech. No free exercise of religion. No protection against warrantless searches. Etc, etc. Surely the rights enumerated in the Bill of Rights are among those fundamental liberties protected by the Due Process Clause.

Again, your beef doesn't really seem to be with a specific case or an approach to the Constitution, but rather with the whole scheme of Constitutional rights protected through judicial review.

Well, I for one believe that the Constitution should be interpreted literally. Not because it's sacred, but because the failure to do so leads to a lot of corruption.

e.g. The current war in Iraq, the war in Vietnam. Korea...

The Constitution says that only Congress can declare war, yet we find ourselves in wars without Congress doing so because people aren't following the Constitution. If people think it's really important to allow the President to wage war without Congressional declaration, then they should get their shit together and amend it.

If the President thinks it his duty to do whatever is necessary to "protect the American people," regardless of the Constitutionality of his actions, fine. But he should be similarly stalwart when dragged before the firing squad for treason.

The Constitution is law. If you don't like a law you change it. Just because a law is bad doesn't mean that violating it is legal.

1. I get your point about the Congressional power to declare war, but I wouldn't blame the erosion of that power on broad construction of the Constitution.

2. One of the many problems with advocating a strictly literal interpretation of the Constitution is that it simply wasn't written with a strictly literal interpretation in mind. Clauses like the Due Process Clause, the Establishment Clause, the prohibition on cruel & unusual punishment, etc., require interpretation to make sense. They have to be understood in context and mean more than the literal words.

Well, I for one believe that the Constitution should be interpreted literally. Not because it's sacred, but because the failure to do so leads to a lot of corruption.

e.g. The current war in Iraq, the war in Vietnam. Korea...

The Constitution says that only Congress can declare war, yet we find ourselves in wars without Congress doing so because people aren't following the Constitution. If people think it's really important to allow the President to wage war without Congressional declaration, then they should get their shit together and amend it.

If the President thinks it his duty to do whatever is necessary to "protect the American people," regardless of the Constitutionality of his actions, fine. But he should be similarly stalwart when dragged before the firing squad for treason.

The Constitution is law. If you don't like a law you change it. Just because a law is bad doesn't mean that violating it is legal.
I would suggest that ignoring the Constitution is not the same as interpreting the Constitution broadly. Similarly, I would not say that breaking a law can be thought of as an interpretation of that law.

When the Congress abdicates its power to declare war to the executive branch, it does not look to the Constitution and find a clause that they can twist to mean they are allowed to do that. They just do it and then try to make up excuses when they are criticized for it. There's no interpretation in it, just ass-coverage.

Likewise, there is nothing at all in the Constitution that allows Bush to do what he does, but there is plenty in the Constitution that prohibits him from doing it. The fact that he does it is a violation of the Constitution, not a broad interpretation of it.

Because ignoring/violating =/= interpreting, a strict constructionist approach would not have prevented the mess the US finds itself in now, with the current administration. Why? Because it is just as easy to break a strictly construed law as a broadly interpreted one.

1. I get your point about the Congressional power to declare war, but I wouldn't blame the erosion of that power on broad construction of the Constitution.

2. One of the many problems with advocating a strictly literal interpretation of the Constitution is that it simply wasn't written with a strictly literal interpretation in mind. Clauses like the Due Process Clause, the Establishment Clause, the prohibition on cruel & unusual punishment, etc., require interpretation to make sense. They have to be understood in context and mean more than the literal words.
The language of the Constitution is clear and simple. I really do not see why it is such a problem to apply, for instance, the clauses you mention to modern conditions and situations. Yes, interpretation is involved, but some people make the Constitution sound like the Prophecies of Frigging Nostradamus. You're in the law racket. Please tell me I'm not the only one who doesn't think the Constitution is that arcane.

Actually it is the Fourteenth Amendment that empowers federal courts to protect persons from violations of their liberty by states.

Whether Congress can pass a federal law regarding abortion under the Commerce Clause is an open question -- although SCOTUS (and ironically many so-called states' rights conservatives) had no problem with the Partial-Birth Abortion Ban Act.

That's why I said "primarily." Madison actually thought that the Bill of Rights was redundant, because if Congress doesn't have the power to do things like arrest peace protesters, establish a state church, prohibit the sale of goods (like guns or pot), or ransack your house, then why would you bother listing examples of things it won't do?

The Main body of the Constitution doesn't concern itself with what people can do, it concerns itself with those few things the Federal government can do. Since then however, the government has assumed more and more power for itself in such a way that no one noticed.

I'm not entirely against the Federal government being able to do these things, I just think that amendments should be added to do it. Like how an amendment was needed to prohibit alcohol, because the Federal government didn't have that power. I believe the same should be true of Marijuana. If you don't have the amendment, you don't have the power. Of course, I also believe that amendment should never be written.

That's why I said "primarily." Madison actually thought that the Bill of Rights was redundant, because if Congress doesn't have the power to do things like arrest peace protesters, establish a state church, prohibit the sale of goods (like guns or pot), or ransack your house, then why would you bother listing examples of things it won't do?

The Main body of the Constitution doesn't concern itself with what people can do, it concerns itself with those few things the Federal government can do. Since then however, the government has assumed more and more power for itself in such a way that no one noticed.

I'm not entirely against the Federal government being able to do these things, I just think that amendments should be added to do it. Like how an amendment was needed to prohibit alcohol, because the Federal government didn't have that power. I believe the same should be true of Marijuana. If you don't have the amendment, you don't have the power. Of course, I also believe that amendment should never be written.
I'm a rabid American Revolutionary, and I'm all for severely restricting the power of the government to interfere in the lives of people. However, I think your suggestion is grossly unfeasible. It's also self-defeating.

Following your argument, every single law that Congress passes would have to be added as an amendment to the Constitution. Do you realize what that would entail, and what it could lead to? Let's walk through it:

You suggest that the government cannot (and by implication should not be able to) do anything that is not specifically enumerated in the Constitution -- and you make it sound very specific indeed. That would require the Congress to amend the Constitution with each and every law it passes. Do you have any idea how many laws there are? Do you have any concept of how many things Congress does by law? Are you suggesting that Congress should amend the Constitution every time it passes, for instance, a special appropriations bill, such as to fund post-Katrina relief? Or every time it amends an existing law, as it frequently does with tax law, for instance? Emergencies often create circumstances in which government must act, but which are not specifically described in the Constitution. Likewise, the changing needs of society create new situations which the government must respond to.

Are you suggesting that the government should take no action in the face of dire emergency unless the Constitution specifically states that it is allowed to? Are you suggesting that the Congress should amend the Constitution every single time society develops some new technology or new way of doing things that affects business or general life in a way not already specifically mentioned in the Constitution? Do you realize that this would lead to a Constitution that is hundreds of thousands of pages long and will become full of errors and contradictions as it is edited over time?

Do you further realize that this could only have one of two effects: to make the Constitution so easy to amend as to become meaningless, or to utterly paralyze government into non-action for fear of making a change. Actually, it could have both those effects at once.

It could also have another effect: Let's say we make it that easy to amend the Constitution. What is to stop it then from becoming even more the plaything of political partisans and wannabe dictators? After all, laws are subject to judicial review, but the Constitution is not, because the Constitution is the rulebook against which laws are reviewed. So anything that is made law by amendment of the Constitution becomes the law of the land -- unchallengable, unavoidable -- unless the amendment is repealed. Are you aware that people try every year to propose amendments to the Constitution that would restrict and harm the liberties of the people, not protect them, amendments that would penalize political speech, institutionalize discrimination and the marginalization or subjugation of one group or another, etc? You argue in favor of restricting government power, yet you would give government the power to make laws that the average citizen has no way to challenge.

For instance, your own example, Prohibition: That was an amendment passed to serve the desires of a narrow special interest group. It served no need of government, nor any national need of security or commerce or infrastructure maintenance or social development, nor did it protect the rights of any group of citizens. Rather than limit the power of government, it actually expanded the power of government to interfere with people's personal decisions (by creating a subject on which it was allowed to do that). It did so by imposing a moral viewpoint that turned out to be so grossly out of keeping with the average person's way of life, that it made near-instant criminals out of millions of Americans and launched a set of criminal enterprises that are with us to this day. The negative effect of Prohibition became so obvious so quickly, that even the moral crusaders who had campaigned for it were forced to admit their mistake and campaign for its repeal.

Your suggestion would give us nothing but an endless series of such episodes, provided it did not make it easy for people like Bush and Cheney to just crush us under tyranny altogether.

I said earlier that I favor a revisable Constitution. But I also believe that the best way to limit government power is to keep it firmly under the control of the principles upon which it was originally founded. I believe very strongly that a key part of those principles is that government should serve the people, not rule over them; that the government should be answerable to the people in all things and live always with the certainty that if it fails to serve the best interests of the people, the people can and will replace it with one that will. No matter how easy it may be for the government to make and change laws, it should not be easy for the government to change the rules it has to play by, the rules that keep it answerable to us. Laws are easily challenged by the people. The Consitution is not easily challenged. Therefore, let there be any number of laws, so long as amendments are rare.

So no, I do not believe the Constitution needs amending, and I do not believe the government should be looking to amend it every time it wants to do something new. I am confident that the Constitution, as written, gives the government everything it needs to address almost every new situation that may arise. On rare occasions, a situation will arise that cannot be answered, and then debate about an amendment may begin -- with gusto. But in my lifetime, as one who believes the Constitution is a living document open to (rational) interpretation, I have not yet seen any situation that the existing Constitution cannot cover.

I'm a rabid American Revolutionary, and I'm all for severely restricting the power of the government to interfere in the lives of people. However, I think your suggestion is grossly unfeasible. It's also self-defeating.

Following your argument, every single law that Congress passes would have to be added as an amendment to the Constitution. Do you realize what that would entail, and what it could lead to? Let's walk through it:

I'm going to clip the rest because this is a faulty assumption and the rest, which is based on it, is by extension also a flawed response to my post.

The Federal Government already has a fairly broad range of powers with the duties spelled out for it. e.g. There is no Federal Law against purchasing alcohol when under the age of 21. But Congress has the power to levy taxes and can spend them as it chooses. It chooses to only fund highway construction (a Federal mandate under regulating interstate trade) in states that pass laws against underage drinking.

Is is argued that Congress can outlaw marijuana because it has the power to regulate interstate trade, which should mean that it can prohibit the buying and selling of a product. However, that's not what regulate meant when the Constitution was written. Much the same way that ejaculate used to mean "to speak excitedly" regulate used to mean "to make regular."

So while the Federal government could pass a law requiring all marijuana for sale on the open market have a specified THC content, it may not (not that that stops it) outright ban it, because growing and using by those who don't also sell is outside the purview of interstate trade. Personally I think that even the argument that a seller of goods must treat goods retained for personal use as part of his mercantile inventory for taxation purposes is absurd, but it is at least on shaky ground. Marijuana prohibition is on no ground at all.

It gets scarier when you look at some of the arguments coming out of conservative circles these days. Bush's nominee for Attorney General said that the President may legally break any Federal Law if he thinks he's doing it to protect the US.:eek:

That's why I said "primarily." Madison actually thought that the Bill of Rights was redundant, because if Congress doesn't have the power to do things like arrest peace protesters, establish a state church, prohibit the sale of goods (like guns or pot), or ransack your house, then why would you bother listing examples of things it won't do?

The Main body of the Constitution doesn't concern itself with what people can do, it concerns itself with those few things the Federal government can do. Since then however, the government has assumed more and more power for itself in such a way that no one noticed.

I'm not entirely against the Federal government being able to do these things, I just think that amendments should be added to do it. Like how an amendment was needed to prohibit alcohol, because the Federal government didn't have that power. I believe the same should be true of Marijuana. If you don't have the amendment, you don't have the power. Of course, I also believe that amendment should never be written.

I think you miss my point about the 14th Amendment and the restriction of state and local governments by the Constitution.

As for federal power, I generally agree with you although it simply isn't true that no one has noticed the increase in federal power. We have over 200 years of Supreme Court cases dealy directly with what the federal government can and can't do. Some truly epic battles have been fought in the courts and in the legislature over the breadth of federal power and the strength of limits thereof.

The language of the Constitution is clear and simple. I really do not see why it is such a problem to apply, for instance, the clauses you mention to modern conditions and situations. Yes, interpretation is involved, but some people make the Constitution sound like the Prophecies of Frigging Nostradamus. You're in the law racket. Please tell me I'm not the only one who doesn't think the Constitution is that arcane.

Much of the Constitution is clear and relatively simple. But not all.

Plus we have 200 years of hard questions about the Constitution answered by the Supreme Court. Yes, you can just look at the Constitution most of the time and get the answer, but sometimes there is a history of precedent to consider. This is envisioned by the Constitution itself.

And some things, like "what is due process?" are not simply plain on their face. They require some thought and study.

I'm going to clip the rest because this is a faulty assumption and the rest, which is based on it, is by extension also a flawed response to my post.

The Federal Government already has a fairly broad range of powers with the duties spelled out for it. e.g. There is no Federal Law against purchasing alcohol when under the age of 21. But Congress has the power to levy taxes and can spend them as it chooses. It chooses to only fund highway construction (a Federal mandate under regulating interstate trade) in states that pass laws against underage drinking.

Is is argued that Congress can outlaw marijuana because it has the power to regulate interstate trade, which should mean that it can prohibit the buying and selling of a product. However, that's not what regulate meant when the Constitution was written. Much the same way that ejaculate used to mean "to speak excitedly" regulate used to mean "to make regular."

So while the Federal government could pass a law requiring all marijuana for sale on the open market have a specified THC content, it may not (not that that stops it) outright ban it, because growing and using by those who don't also sell is outside the purview of interstate trade. Personally I think that even the argument that a seller of goods must treat goods retained for personal use as part of his mercantile inventory for taxation purposes is absurd, but it is at least on shaky ground. Marijuana prohibition is on no ground at all.

It gets scarier when you look at some of the arguments coming out of conservative circles these days. Bush's nominee for Attorney General said that the President may legally break any Federal Law if he thinks he's doing it to protect the US.:eek:
I'm not going to get into the tangent of bad legislation and the excuses for it. I'm just going to ask what assumption I'm making and how it is faulty.

You said you would rather see the Congress amend the Constitution to change the laws that define its powers, not pass laws based on interpretation of the existing Constitution.

I pointed out that the Constitution is not subject to judicial review, so if an amendment is passed that is bad, the only recourse is to repeal it -- and you have to pursuade the Congress to do that. You cannot force the Congress to do it by getting the courts to decide it is unconstitutional, since by definition, the Constitution can't be unconstitutional.

Think about what you are really saying here, Domici. You say you are a strict constructionist who believes the government should only do what the Constitution specifically says it can do. But then you advocate letting the government make the Constitution say whatever they want it to say at any given time, to give themselves whatever powers they want. Tell me, if we did that, what would be the point of having a constitution at all?

Much of the Constitution is clear and relatively simple. But not all.

Plus we have 200 years of hard questions about the Constitution answered by the Supreme Court. Yes, you can just look at the Constitution most of the time and get the answer, but sometimes there is a history of precedent to consider. This is envisioned by the Constitution itself.

And some things, like "what is due process?" are not simply plain on their face. They require some thought and study.
I guess I don't consider a requirement for "some thought and study" to be so burdensome that it requires wholesale reworking of the system, and I don't see why it would make anyone just throw up their hands and say the document has to be amended to make it clear.

You start with the Constitution. You work through the precedents. You make the appropriate decision, based, we hope, on sound critical judgment (and possibly some decent reading comprehension). BFD. I guess I don't understand -- or am just sick to shit of being surrounded by -- people who can't seem to handle that much work.

And they were wrong.

No, they were quite right.

In NAACP v. Alabama, 357 U.S. 449, 462, the court protected the right to privacy with regard to membership in association because the lack of that privacy was a de facto limitation on the freedom to associate. In order to protect the freedom to associate, the privacy of that association also needed to be protected. That ruling makes perfect sense, but it does not further require that privacy is protected generally. In fact, that NAACP v. Alabama needed to point out that privacy needed to be protected in order to protect the freedom to associate tells me that privacy is not otherwise protected. Later findings (like Griswold) are therefore even more obviously in error once you examine earlier rulings.

You misread NAACP v. Alabama and thereby misunderstand the reasoning of Griswold. As you admit, it made perfect sense to conclude that the freedom of association contains an element of privacy that is also protected. NAACP v. Alabama didn't rule there was a seperate right of privacy, Griswold did. The Court in Griswold points to NAACP v. Alabama as one of many cases in which the Constitution (1) has been held to protect more than a narrow literal interpretation would protect and (2) has been held to protect some aspect of privacy. Griswold builds on those cases and takes them to the next step, a general right of privacy protected by the Constitution.

Griswold v. Connecticut goes on to point out that the right to privacy is consistent with, among other things, the third and fifth amendments. I don't see how that's even vaguely relevant; the court is offering justification for the decision they've reached, but the justification is a lot of persuasive nonsense. Just because the right to privacy is consistent with the constitution does not mean the right is protected by the constitution, and that's the crux of the finding here.

Perhaps you don't understand the point of a SCOTUS opinion, which is to explain and justify the decision the Court has reached. Of course it is full of persuasive arguments about why that decision is correct.

The discussion of the third and fifth amendments and other portions of the Bill of Rights are there to show the Court isn't simply making up a right of privacy from whole cloth, but rather being consistent with the overall spirit of the Constitution.

I'd love it if that were written down in the constitution somewhere.

It is. See the Ninth Amendment. It also is the starting place from which one sits down to read the Constitution. As stated in the Declaration of Indepedence, men are born with inalienable rights and government is intended to secure these rights.


I think the ninth amendment is really cleverly written. It's a hedge against possible rights which might not exist at the time of writing. Since perfect knowledge even of the relevant body of law might not be possible, the amendment allows for possible extant rights without requiring that they actually exist (or exist yet).

I'm going to have to pick out bits of that to point out specific errors.

As I've pointed out, the language reveals no such thing. It is a very cleverly written hedge against possible unenumerated rights (or, given the verb tense, presently unenumerated rights).

Or to assert that the right doesn't exist, a possibility Justice Goldberg seems to be ignoring.

Well of course it would. But for that to matter there would have to exist "fundamental rights...not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution" , and that is by no means certain.

Nice strawman, Goldberg.

I've already refuted that.

I'll concede that the ninth amendment shows that the list of rights included in the first eight amendments was believed by the authors of the ninth amendment to be not necessarily exhaustive. To claim that it wasn't actually exhaustive is a stretch.

No, again. See above.

All of your arguments center around the petty conceit that the Ninth Amendment only protects theoretical rights and not actual rights. Such a reading is absurd on its face. What would be the point of such an Amendment?

But, even taking your absurd reading, the Ninth Amendment still says there are rights that are protected that are not enumerated. Thus, in cases like Griswold, the Court has looked at what other rights are implied by the literal provisions that are enumerated.

Except, of course, liberty is only protected by the fourteenth amendment in the absence of due process of law. The general protection of liberty is a product of judicial imagination.

As explained in my earlier post, this is a misreading of the 14th Amendment.

Can it be interpreted by laypeople who live under the law? With certainty?

I don't think so.

You imply a standard here that although desirable, isn't necessarily a function of the Constitution. This goes back to my thinking that your problem isn't with broad construction of the Constitution: your problem is with the Constitution itself.

Plus, legislative intent only matters if you don't trust legislators to write the laws to say what they mean. And if that's true, you have bigger problems.

What is meant by "due process of law," "establishment of religion," "cruel & unusual punishment"? These words have context and meaning beyond the literal interpretation. One source of that context is the intent of the Founders.

It is perfectly reasonable to expect laws (especially the Constitution) to use words and phrases that are less than 100% defined in the laws themselves. That is part of our system in which the Executive and Judicial branches help define what the law means.

The goal here appears to be to allow the will of the people (aka, common sense) to shape the law subtly over time so that it more closely conforms to the people's opinion as to what the law should be, or what is right and good. But if that's the case, why isn't that explicitly wirtten down anywhere?

That isn't really the goal. But how would you write that to satisfy people such as yourself without making the written Constitution meaningless?



Nothing in the text of the amendment or the quoted Madison passages says that (and I'm being generous here in even considering the quoted Madison passages - the average citizen doesn't have ready access to the musings of a legislator two centuries past).

Yes, both the text of the amendment and the Madison passage do say that. You simply aren't reading them for what they say.

And, again, you apply a false standard as to what is relevant to a judicial ruling on the Constitution.

I guess I don't consider a requirement for "some thought and study" to be so burdensome that it requires wholesale reworking of the system, and I don't see why it would make anyone just throw up their hands and say the document has to be amended to make it clear.

You start with the Constitution. You work through the precedents. You make the appropriate decision, based, we hope, on sound critical judgment (and possibly some decent reading comprehension). BFD. I guess I don't understand -- or am just sick to shit of being surrounded by -- people who can't seem to handle that much work.

I think we are in agreement here. I don't see the Constitution as requiring major reworking or amendment. I think the document is sufficiently broad to protect our fundamental rights and provide necessary limits on government power.

I think we are in agreement here. I don't see the Constitution as requiring major reworking or amendment. I think the document is sufficiently broad to protect our fundamental rights and provide necessary limits on government power.
Yes, we do agree on this. :)

You can disagree all you want but that case states not just an opinion on what should or should not be allowed in terms of retroactive laws but also defines what an ex post facto law is.

It is one thing for you to object to all retroactive laws. That is a defensible (even though I think foolish) position. It is another thing to call all retroactive laws ex post facto laws. Calder v. Bull sets out the definition of ex post facto laws. It is no more arbitrary or less definitive than a dictionary definition.
Do you realise that by citing a judicial decision to define a constitutional term, you're presupposing that the courts have the power to interpret the constitution broadly?

Because you are. What a court later says the constitution means should have no bearing on what the constitution means, unless you presuppose that the constitution is a living document.
You really don't see the great difference beween making an unlawful act retroactively lawful and making an innocent action retroactively a crime? I think if you think about it the difference really is great and apparent.
Then explain it to me.
Again, it is one thing for you to object to laws that make unlawful acts retroactively lawful. It is an altogether different thing to say such laws are just as unfair as laws that make innocent acts retroactively criminal.
They both, to equal degrees, reduce the level of certainty I can have about the law's opinion of the things I currently do. They both, to equal degrees, make the law less predictable and less fair.
1. At most, your example shows that it is possible for a retroactive law to be unfair, even if it isn't an ex post facto law.

Just because a law is retroactive and/or unfair doesn't make it an ex post facto law.
Do we have a legal definition of the term that predates the constitution? Since the framers can't have been aware of definitions offered after the constitution was written (linear time and all), none of them are relevant. Only definitions available at the time of writing can be used ot determine what the framers thought the term meant. I was using it literally.

I would agree, however, that whether a law is unfair is not relevant to whether it is ex post facto. Whether it is retroactive is relevant. I was simply showing the possible unfairness of all retroactive laws, arguing that there is no difference in kind between what you call retroactive and ex post facto laws.
3. This is somewhat restating a point I made above, but Calder v. Bull doesn't say that all retroactive laws are good. It merely recognizes that a retroactive law is not necessarily wrong per se.
And I disagree. As mentioned above, retroactive laws have the same effect on the predictability and fairness of the law as do ex post facto laws.

No. The judicial interpretation (which conforms to the legislative intent) is that (1) there are certain fundamental rights included in the liberty from which we are protected from deprivation through due process and (2) statutes do not necessarily constitute due process -- they must in the case of a fundamental right serve a compelling state interest and be narrowly tailored to carry out that interest. Thus, there is a substantive component to the Due Process Clause. This component is both found in the text and in the legislative history. Not to mention 120 years or so of court precedent.
To a strict constructionist, the 120 years of precedent and the judicial interpretation aren't relevant. They're not in the text, so they don't matter.
Note that, without the interpretation of the 14th Amendment as protecting fundamental liberties, none of the Bill of Rights would apply to the states. No free speech. No free exercise of religion. No protection against warrantless searches. Etc, etc. Surely the rights enumerated in the Bill of Rights are among those fundamental liberties protected by the Due Process Clause.
When you say things like this I wonder if you're trying to convince me that these rights should exist.

But I don't care if they should exist. I care whether the constitution says they do exist, and it doesn't.

The United States was founded as a federation of states. Those states were free, for the most part, to set their own rules. Having the federal declaration of rights not apply to them makes perfect sense in that circumstance.
Again, your beef doesn't really seem to be with a specific case or an approach to the Constitution, but rather with the whole scheme of Constitutional rights protected through judicial review.
I think protecting constitutional rights is incredibly important, and the judicial system is a great way to do that.

However, I don't think the judiciary gets to decide what rights the constitution should protect.

You misread NAACP v. Alabama and thereby misunderstand the reasoning of Griswold. As you admit, it made perfect sense to conclude that the freedom of association contains an element of privacy that is also protected. NAACP v. Alabama didn't rule there was a seperate right of privacy, Griswold did.
Right, and Griswold is where the error occurs.
The Court in Griswold points to NAACP v. Alabama as one of many cases in which the Constitution (1) has been held to protect more than a narrow literal interpretation would protect and (2) has been held to protect some aspect of privacy.
I don't think NAACP v. Alabama does protect more than a narrow literal interpretation. It protects everything that it necessary to protect the narrow literal interpretation. Without protecting privacy the way it did, it can't protect freedom of association. Since freedom of association is protected, privacy must also be protected in the ways Alabama describes. It follows perfectly logically.

Griswold, on the other hand, relies on induction. Alabama did not.
Griswold builds on those cases and takes them to the next step, a general right of privacy protected by the Constitution.
Exactly. That's the problem. The constitution doesn't protect a general right to privacy. Nothing in the constitution says that. Nor is the existence of such a right a logical consequence of any combination of the constitution's contents. The only way to justify the existence of a right to privacy within the constitution is through induction, and that is akin to making it up.
Perhaps you don't understand the point of a SCOTUS opinion, which is to explain and justify the decision the Court has reached. Of course it is full of persuasive arguments about why that decision is correct.
Perhaps you don't understand how logic works. If the decision is correct, under strict construction, there is no need to offer persuasive arguments to justify a decision. The decision could simply demonstrate that the finding could not logically be otherwise and that would be it.

SCOTUS decisions like this one read like the efforts of a high school debating team.

The findings of law made by the court should be demonstrably true. Otherwise they're not based wholly in law.
The discussion of the third and fifth amendments and other portions of the Bill of Rights are there to show the Court isn't simply making up a right of privacy from whole cloth, but rather being consistent with the overall spirit of the Constitution.
But the consistency isn't relevant if the existence of the right isn't required. All sorts of things are consistent with the constitution, because the constitution didn't descirbe the entire universe. Allowing that to be your standard of acceptability opens you to a wide variety of foundationless judgements.
It is. See the Ninth Amendment. It also is the starting place from which one sits down to read the Constitution. As stated in the Declaration of Indepedence, men are born with inalienable rights and government is intended to secure these rights.
Have you not been listening? The ninth amendment does not, at any point, state that any unenumerated rights exist. Not once.
All of your arguments center around the petty conceit that the Ninth Amendment only protects theoretical rights and not actual rights.
Petty conceit?

And you're wrong. The ninth amendment certainly can protect actual rights, and it might protect actual rights, but whether it does protect actual rights is not among the contents of the amendment.
What would be the point of such an Amendment?
To protect unenumerated rights. Duh.

Madison doesn't need to be aware of the existence of any unenumerated rights for the amendment to be meaningful. He could be protecting future rights which don't yet exist, but he knows might come to exist (through whatever means are necessary to create rights). Or he might think there are fundamental rights that predate the constitution (as you claim), though that's a tougher position to justify given the complete absence of any reference to them within the constitution.
But, even taking your absurd reading, the Ninth Amendment still says there are rights that are protected that are not enumerated.
No it doesn't. Nothing in the ninth amendment posits the existence of unenumerated rights. I think you should read it again.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Nothing in there says the people retain other rights.
Thus, in cases like Griswold, the Court has looked at what other rights are implied by the literal provisions that are enumerated.
If by implied, you mean logically required, that's what they should have done. But that's not what they did.
As explained in my earlier post, this is a misreading of the 14th Amendment.
Then what does the "without due process of law" clause mean? Does it have any meaning? You seem to be ignoring it entirely.
You imply a standard here that although desirable, isn't necessarily a function of the Constitution. This goes back to my thinking that your problem isn't with broad construction of the Constitution: your problem is with the Constitution itself.
Not at all. My objecting is to the perception that the constitution should be read to mean things it doesn't say. I have no idea why anyone thinks that has any basis. Even the constitution doesn't ask toi be misinterpreted, and yet most people and courts seem to think that's the right thing to do.
What is meant by "due process of law," "establishment of religion," "cruel & unusual punishment"? These words have context and meaning beyond the literal interpretation.
Why do you think that? I see no reason to hold that opinion.

Literal meaning is the only meaning of which we can be sure.
One source of that context is the intent of the Founders.
Which isn't knowable.
It is perfectly reasonable to expect laws (especially the Constitution) to use words and phrases that are less than 100% defined in the laws themselves.
You and I seem to disagree as to what "reasonable" means.
That is part of our system in which the Executive and Judicial branches help define what the law means.
The judicial branch should perhaps explain what the law means, but they should be able to do that in a way that is demonstrably and indisputably correct.

And yet, sometimes there are dissenting opinions. Why is that? That means the law mean something else - retroactively - if there were different judges on the bench. Do you honestly think that's a good thing?
That isn't really the goal. But how would you write that to satisfy people such as yourself without making the written Constitution meaningless?
I'm not sure you could, which is why it's such a terrible idea. The constitution is already meaningless if it doesn't always mean exactly what it says, without expansion or deviation under any circumstances.

You asked for someone who supported strict constructionism to explain why. I'm trying to do that, and so far I think I'm doing a really good job.
Yes, both the text of the amendment and the Madison passage do say that. You simply aren't reading them for what they say.
I'm reading the text exactly as it is written. That you want it to mean something else does not make it say something else.
And, again, you apply a false standard as to what is relevant to a judicial ruling on the Constitution.
What should be relevant to a judicial ruling on the constitution should be the text of the constitution. Nothing less; nothing more.

Which ever point of view fits what I'm trying to argue at the time. I have my own opinions aside from a piece of paper, I just use it as support.

strict construction? hell, no! the constitution was designed to be flexible

And to Llewdor, I appreciate your attempt to understand the US Constitution, as a non-US citizen, and I'm not going to criticize you at all. I just want to point out that your statement that "Nothing should be construed" strikes me as the very heart of strict constructionist thinking. It's interesting because it suggests that the strict-constructionist view has nothing at all to do with the US Constitution or US history or the intent of the framers, but rather is an inherent viewpoint that some people bring to the debate, all on their own.
Yes, it's called logic.
If so, then the entire strict constructionist versus living document debate is really just a clash of personalities.
Perhaps. But I maintain that the position of the living document camp necessarily leads to a nonsensical and powerless constitution that has been construed to mean nearly everything.

No reasonable person could read the constitution and come up with all (or even a small fraction) of the judicial imaginings that have been attributed to it. That tells me that those decisions have nothing at all to do with the constitution.
Many other people have argued about the language of the Constitution not being clear. I have never understood why people have a problem understanding the US Constitution. To my eye, it is the clearest, most obfuscation-free and ambiguity-free legal document ever written, short of some business contracts. I have never yet seen anyone claim that the Constitution is unclear or ambiguous unless they are trying to bend it to promote some social or political agenda of their own, or trying to use it to carry a weak argument in court.
I would agree. I think the US constitution is a very well written document, and easily the best-written of any constitution I have ever read.

the constitution was designed to be flexible
How do you know?

No, they were quite right.



You misread NAACP v. Alabama and thereby misunderstand the reasoning of Griswold. As you admit, it made perfect sense to conclude that the freedom of association contains an element of privacy that is also protected. NAACP v. Alabama didn't rule there was a seperate right of privacy, Griswold did. The Court in Griswold points to NAACP v. Alabama as one of many cases in which the Constitution (1) has been held to protect more than a narrow literal interpretation would protect and (2) has been held to protect some aspect of privacy. Griswold builds on those cases and takes them to the next step, a general right of privacy protected by the Constitution.



Perhaps you don't understand the point of a SCOTUS opinion, which is to explain and justify the decision the Court has reached. Of course it is full of persuasive arguments about why that decision is correct.

The discussion of the third and fifth amendments and other portions of the Bill of Rights are there to show the Court isn't simply making up a right of privacy from whole cloth, but rather being consistent with the overall spirit of the Constitution.



It is. See the Ninth Amendment. It also is the starting place from which one sits down to read the Constitution. As stated in the Declaration of Indepedence, men are born with inalienable rights and government is intended to secure these rights.




All of your arguments center around the petty conceit that the Ninth Amendment only protects theoretical rights and not actual rights. Such a reading is absurd on its face. What would be the point of such an Amendment?

But, even taking your absurd reading, the Ninth Amendment still says there are rights that are protected that are not enumerated. Thus, in cases like Griswold, the Court has looked at what other rights are implied by the literal provisions that are enumerated.



As explained in my earlier post, this is a misreading of the 14th Amendment.



You imply a standard here that although desirable, isn't necessarily a function of the Constitution. This goes back to my thinking that your problem isn't with broad construction of the Constitution: your problem is with the Constitution itself.



What is meant by "due process of law," "establishment of religion," "cruel & unusual punishment"? These words have context and meaning beyond the literal interpretation. One source of that context is the intent of the Founders.

It is perfectly reasonable to expect laws (especially the Constitution) to use words and phrases that are less than 100% defined in the laws themselves. That is part of our system in which the Executive and Judicial branches help define what the law means.



That isn't really the goal. But how would you write that to satisfy people such as yourself without making the written Constitution meaningless?



Yes, both the text of the amendment and the Madison passage do say that. You simply aren't reading them for what they say.

And, again, you apply a false standard as to what is relevant to a judicial ruling on the Constitution.

Do you realise that by citing a judicial decision to define a constitutional term, you're presupposing that the courts have the power to interpret the constitution broadly?

Because you are. What a court later says the constitution means should have no bearing on what the constitution means, unless you presuppose that the constitution is a living document.

Then explain it to me.

They both, to equal degrees, reduce the level of certainty I can have about the law's opinion of the things I currently do. They both, to equal degrees, make the law less predictable and less fair.

Do we have a legal definition of the term that predates the constitution? Since the framers can't have been aware of definitions offered after the constitution was written (linear time and all), none of them are relevant. Only definitions available at the time of writing can be used ot determine what the framers thought the term meant. I was using it literally.

I would agree, however, that whether a law is unfair is not relevant to whether it is ex post facto. Whether it is retroactive is relevant. I was simply showing the possible unfairness of all retroactive laws, arguing that there is no difference in kind between what you call retroactive and ex post facto laws.

And I disagree. As mentioned above, retroactive laws have the same effect on the predictability and fairness of the law as do ex post facto laws.

To a strict constructionist, the 120 years of precedent and the judicial interpretation aren't relevant. They're not in the text, so they don't matter.

When you say things like this I wonder if you're trying to convince me that these rights should exist.

But I don't care if they should exist. I care whether the constitution says they do exist, and it doesn't.

The United States was founded as a federation of states. Those states were free, for the most part, to set their own rules. Having the federal declaration of rights not apply to them makes perfect sense in that circumstance.

I think protecting constitutional rights is incredibly important, and the judicial system is a great way to do that.

However, I don't think the judiciary gets to decide what rights the constitution should protect.

Right, and Griswold is where the error occurs.

I don't think NAACP v. Alabama does protect more than a narrow literal interpretation. It protects everything that it necessary to protect the narrow literal interpretation. Without protecting privacy the way it did, it can't protect freedom of association. Since freedom of association is protected, privacy must also be protected in the ways Alabama describes. It follows perfectly logically.

Griswold, on the other hand, relies on induction. Alabama did not.

Exactly. That's the problem. The constitution doesn't protect a general right to privacy. Nothing in the constitution says that. Nor is the existence of such a right a logical consequence of any combination of the constitution's contents. The only way to justify the existence of a right to privacy within the constitution is through induction, and that is akin to making it up.

Perhaps you don't understand how logic works. If the decision is correct, under strict construction, there is no need to offer persuasive arguments to justify a decision. The decision could simply demonstrate that the finding could not logically be otherwise and that would be it.

SCOTUS decisions like this one read like the efforts of a high school debating team.

The findings of law made by the court should be demonstrably true. Otherwise they're not based wholly in law.

But the consistency isn't relevant if the existence of the right isn't required. All sorts of things are consistent with the constitution, because the constitution didn't descirbe the entire universe. Allowing that to be your standard of acceptability opens you to a wide variety of foundationless judgements.

Have you not been listening? The ninth amendment does not, at any point, state that any unenumerated rights exist. Not once.

Petty conceit?

And you're wrong. The ninth amendment certainly can protect actual rights, and it might protect actual rights, but whether it does protect actual rights is not among the contents of the amendment.

To protect unenumerated rights. Duh.

Madison doesn't need to be aware of the existence of any unenumerated rights for the amendment to be meaningful. He could be protecting future rights which don't yet exist, but he knows might come to exist (through whatever means are necessary to create rights). Or he might think there are fundamental rights that predate the constitution (as you claim), though that's a tougher position to justify given the complete absence of any reference to them within the constitution.

No it doesn't. Nothing in the ninth amendment posits the existence of unenumerated rights. I think you should read it again.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Nothing in there says the people retain other rights.

If by implied, you mean logically required, that's what they should have done. But that's not what they did.

Then what does the "without due process of law" clause mean? Does it have any meaning? You seem to be ignoring it entirely.

Not at all. My objecting is to the perception that the constitution should be read to mean things it doesn't say. I have no idea why anyone thinks that has any basis. Even the constitution doesn't ask toi be misinterpreted, and yet most people and courts seem to think that's the right thing to do.

Why do you think that? I see no reason to hold that opinion.

Literal meaning is the only meaning of which we can be sure.

Which isn't knowable.

You and I seem to disagree as to what "reasonable" means.

The judicial branch should perhaps explain what the law means, but they should be able to do that in a way that is demonstrably and indisputably correct.

And yet, sometimes there are dissenting opinions. Why is that? That means the law mean something else - retroactively - if there were different judges on the bench. Do you honestly think that's a good thing?

I'm not sure you could, which is why it's such a terrible idea. The constitution is already meaningless if it doesn't always mean exactly what it says, without expansion or deviation under any circumstances.

You asked for someone who supported strict constructionism to explain why. I'm trying to do that, and so far I think I'm doing a really good job.

I'm reading the text exactly as it is written. That you want it to mean something else does not make it say something else.

What should be relevant to a judicial ruling on the constitution should be the text of the constitution. Nothing less; nothing more.

Yes, it's called logic.

Perhaps. But I maintain that the position of the living document camp necessarily leads to a nonsensical and powerless constitution that has been construed to mean nearly everything.

No reasonable person could read the constitution and come up with all (or even a small fraction) of the judicial imaginings that have been attributed to it. That tells me that those decisions have nothing at all to do with the constitution.

I would agree. I think the US constitution is a very well written document, and easily the best-written of any constitution I have ever read.

I applaud Cat-Tribe for the observation I bolded, you were quite right. And am I the only person here bothered by Llewdor, a Canadian, presuming to interpret our Constitution for us? I would never assume I understood Canadian law better than he.

Do you realise that by citing a judicial decision to define a constitutional term, you're presupposing that the courts have the power to interpret the constitution broadly?

Because you are. What a court later says the constitution means should have no bearing on what the constitution means, unless you presuppose that the constitution is a living document.

Then explain it to me.

They both, to equal degrees, reduce the level of certainty I can have about the law's opinion of the things I currently do. They both, to equal degrees, make the law less predictable and less fair.

Do we have a legal definition of the term that predates the constitution? Since the framers can't have been aware of definitions offered after the constitution was written (linear time and all), none of them are relevant. Only definitions available at the time of writing can be used ot determine what the framers thought the term meant. I was using it literally.

I would agree, however, that whether a law is unfair is not relevant to whether it is ex post facto. Whether it is retroactive is relevant. I was simply showing the possible unfairness of all retroactive laws, arguing that there is no difference in kind between what you call retroactive and ex post facto laws.

And I disagree. As mentioned above, retroactive laws have the same effect on the predictability and fairness of the law as do ex post facto laws.

1. Calder v. Bull was decided in 1798, so it is relatively contemprary with the Constitution itself. In defining what an ex post facto law is the Court relied on well-known and authoritative definitions that predated the Constitution. From the opinion (right after the part I quoted earlier):

The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government.

2. By citing a judicial decision to define a constitutional term, I am merely presupposing that the Court has a proper role in intepreting the Constitution -- and not making a judgment as to whether that interpretation is broad or strict. I know you are suggesting a strange world where there is no judicial interpretation at all, but that isn't the position of a strict constructionist. Rather, that is an altogether different proposition.

3. I'm not going to argue with you further about whether retroactive laws (or the retroactive application of a judicial decision) can ever be good or fair. It is a side issue and there is no point. You have made your opinion clear. We simply disagree. But there can be no issue that all retroactive laws are ex post facto laws. They simply aren't - by definition.

To a strict constructionist, the 120 years of precedent and the judicial interpretation aren't relevant. They're not in the text, so they don't matter.

Deal with the substance of the precedent rather than just dismiss it on the grounds that it is precedent. (Again, a normal strict constructionist doesn't take the position that precedent doesn't matter. That is your unique perspective.)

Regardless, I was explaining part of the meaning of the Due Process Clause. A state may not deprive someone of liberty without providing due process of law. What constitutes due process is a complex question and a statute does not in and of itself satisfy due process. An ordinary law must be rational and not arbitrary and capricious or it denies due process of law. In order to impose on a fundamental right, a statute must serve a compelling state interest and be narrowly tailored to carry out that interest or it denies due process of law.

But pray tell (1) what is wrong with the above application of the Due Process Clause and (2) what you think the Due Process Clause means if it doesn't mean what SCOTUS has says it means since it was written.

When you say things like this I wonder if you're trying to convince me that these rights should exist.

But I don't care if they should exist. I care whether the constitution says they do exist, and it doesn't.

Whether they should exist is relevant to whether the Constitution protects them.

But, regardless, the Constitution does protect fundamental liberties. It says so in the 5th and 14th Amendments.

The United States was founded as a federation of states. Those states were free, for the most part, to set their own rules. Having the federal declaration of rights not apply to them makes perfect sense in that circumstance.

Um. Then the Constitution was amended. With the 14th Amendment, things changed. The Bill of Rights is applicable to the states.

I think protecting constitutional rights is incredibly important, and the judicial system is a great way to do that.

However, I don't think the judiciary gets to decide what rights the constitution should protect.

Again, your problem isn't with broad construction, it is with any construction whatsoever. You posit a fundamentally different system than that created by the Founders.

Deal with the substance of the precedent rather than just dismiss it on the grounds that it is precedent. (Again, a normal strict constructionist doesn't take the position that precedent doesn't matter. That is your unique perspective.)Well, not unique. Clarence Thomas pulls this one a fair bit (see: pretty much any Establishment Clause case). It's just as stupid when he says it, though.

i agree with the stict construction of this "we the people"

and corporations are not people.

so there is no "free speech" for advertising paid for by
corporate money.
no "day in court" for a corporation, because "coca-bola" can't be jailed.

so yearh,
i'm for strictly keeping with the above common sense lost somewhere under
the couch pillow

I applaud Cat-Tribe for the observation I bolded, you were quite right. And am I the only person here bothered by Llewdor, a Canadian, presuming to interpret our Constitution for us? I would never assume I understood Canadian law better than he.
I don't presume to understand US law better than you. I'm sure I don't. Even US constitutional law has clearly extended well beyond the text of the constitution in ways that I find entirely unpredictable.

I may, however, be claiming to understand language better than you.

By citing a judicial decision to define a constitutional term, I am merely presupposing that the Court has a proper role in intepreting the Constitution -- and not making a judgment as to whether that interpretation is broad or strict. I know you are suggesting a strange world where there is no judicial interpretation at all, but that isn't the position of a strict constructionist. Rather, that is an altogether different proposition.
A "proper" role? That's a bit of a value judgement, isn't it?
Deal with the substance of the precedent rather than just dismiss it on the grounds that it is precedent. (Again, a normal strict constructionist doesn't take the position that precedent doesn't matter. That is your unique perspective.)
Precedent can't matter. That would allow erroneous judgements to alter the meaning of the constitution over time. Broad construction also allows "correct" judgements to do the same (because a judgement can still be correct even if it doesn't conform to the text - I still don't understand how that can possible work), but allowing erroenous judgements to alter the meaning defeats the whole purpose of adhering to strict construction. Planned Parenthood v. Casey cites previous erroneous judgements throughout.

Anyone who supports strict constructionism and yet allows for judicial precedent holds an inconsistent position.
Regardless, I was explaining part of the meaning of the Due Process Clause. A state may not deprive someone of liberty without providing due process of law. What constitutes due process is a complex question and a statute does not in and of itself satisfy due process. An ordinary law must be rational and not arbitrary and capricious or it denies due process of law. In order to impose on a fundamental right, a statute must serve a compelling state interest and be narrowly tailored to carry out that interest or it denies due process of law.
Your previous assertion was that liberty was protected as a fundamental right, regardless of the due process of law.

Incidentally, why can't a law be arbitrary? Isn't the entire legal construct arbitrary? It's not like the whole of the law stems from some accepted set of first principles that's written down somewhere.

Due process is, as its name suggests, a process. As long as the process is followed, the law should be valid, no?

Oh, and you never told me what a fundamental right was.
But pray tell (1) what is wrong with the above application of the Due Process Clause and (2) what you think the Due Process Clause means if it doesn't mean what SCOTUS has says it means since it was written.
As you yourself said, "The liberty protected by the Due Process Clause includes substantive fundamental rights that cannot be violated." But the amendment doesn't say that. It specifically limits that restriction to circumstances lacking "due process of law". In the presence of due process, liberty IS NOT PROTECTED by the 14th amendment.

SCOTUS has ignored the due process component of the amendment and simply granted blanket protection to liberty. The 14th amendment clearly allows violations of liberty in cases where due process is followed. Some of these decisions don't cite an absence of due process as the reason liberty is protected. They're just protecting it willy-nilly.

Either that, or I don't understand what you're asking. I don't accept your interpretation of the amendment. I don't accept the SCOTUS interpertation of the amendment. I think you're both wrong.
Whether they should exist is relevant to whether the Constitution protects them.
Is it? Is the interpretation of the constitution supposed to be a normative exercise?

I don't think it is. It's a descriptive and deductive exercise. Whether judges think a given right should be protected can't matter unless the constitution specifically empowers them so.
But, regardless, the Constitution does protect fundamental liberties. It says so in the 5th and 14th Amendments.
I note that the word "fundamental" doesn't appear in either amendment.

SCOTUS isn't infallible.
Um. Then the Constitution was amended. With the 14th Amendment, things changed. The Bill of Rights is applicable to the states.
Really? Funny, I seem to recall you saying something else on this topic. Let's see...
Note that, without the interpretation of the 14th Amendment as protecting fundamental liberties, none of the Bill of Rights would apply to the states.
There. You keep referring to meanings the amendments were interpreted to have. What meanings do they actually have? What does the text say? That's really what matters; what some judge thought the words meant shouldn't impact what you think the words mean.
Again, your problem isn't with broad construction, it is with any construction whatsoever. You posit a fundamentally different system than that created by the Founders.
I posit a fundamentally different system than the one you have. I think it's wonderfully consistent with the one the founders created.
1. Calder v. Bull was decided in 1798, so it is relatively contemprary with the Constitution itself. In defining what an ex post facto law is the Court relied on well-known and authoritative definitions that predated the Constitution. From the opinion (right after the part I quoted earlier):

The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government.

3. I'm not going to argue with you further about whether retroactive laws (or the retroactive application of a judicial decision) can ever be good or fair. It is a side issue and there is no point. You have made your opinion clear. We simply disagree. But there can be no issue that all retroactive laws are ex post facto laws. They simply aren't - by definition.
Those earlier definitions of ex post facto rely on a false dichotomy with other retrospective laws. There is no difference in kind between the two, so those definitions are clearly incorrect.

But given that, I wouldn't be opposed to SCOTUS ruling this section of the constitution uninterpretable.

A "proper" role? That's a bit of a value judgement, isn't it?

Nice. Ignore the substance of what I said and try to play games with a single word I used. And, yes, "proper" is something of a value judgment. WTF wouldn't it be?

Precedent can't matter. That would allow erroneous judgements to alter the meaning of the constitution over time. Broad construction also allows "correct" judgements to do the same (because a judgement can still be correct even if it doesn't conform to the text - I still don't understand how that can possible work), but allowing erroenous judgements to alter the meaning defeats the whole purpose of adhering to strict construction. Planned Parenthood v. Casey cites previous erroneous judgements throughout.

Anyone who supports strict constructionism and yet allows for judicial precedent holds an inconsistent position.

Your dislike for precedent is a seperate issue that strict construction. Are you honestly positing a system where each time the Supreme Court has to answer a tough question they start from scratch and ignore any work they've done in the past? What happens to your predictability then?

Your previous assertion was that liberty was protected as a fundamental right, regardless of the due process of law.

No you misunderstood. Liberty is protected. Fundamental rights require a different level of process than other liberties, but all are subject to the due process clause.

The problem is you are sitting down with the Consitution and simply reading your own meanings into it. You haven't really studied it or its history, so you don't understand it.

Incidentally, why can't a law be arbitrary? Isn't the entire legal construct arbitrary? It's not like the whole of the law stems from some accepted set of first principles that's written down somewhere.

A completely arbitrary construct provides no due process of law. If the law may be arbitrary and capricious then it affords no due process of law.

Due process is, as its name suggests, a process. As long as the process is followed, the law should be valid, no?

And I explained that the process that must be followed depends on the liberty being impinged. Impinging on a fundamental right requires a compelling state interest and narrow tailoring toward that interest. That is the due process required for such a statute to be valid.

You seem to be making the assertion that the Due Process Clause has no meaning whatsoever because whatever process is followed is the amount that is due. That renders the Clause moot.

As you yourself said, "The liberty protected by the Due Process Clause includes substantive fundamental rights that cannot be violated." But the amendment doesn't say that. It specifically limits that restriction to circumstances lacking "due process of law". In the presence of due process, liberty IS NOT PROTECTED by the 14th amendment.

SCOTUS has ignored the due process component of the amendment and simply granted blanket protection to liberty. The 14th amendment clearly allows violations of liberty in cases where due process is followed. Some of these decisions don't cite an absence of due process as the reason liberty is protected. They're just protecting it willy-nilly.

Either that, or I don't understand what you're asking. I don't accept your interpretation of the amendment. I don't accept the SCOTUS interpertation of the amendment. I think you're both wrong.

Nice job of avoiding answering the question. I get it that you think the authors of the 14th Amendment and 120 years of Supreme Court decisions are all wrong about what the 14th Amendment means, but you don't really explain what its true meaning is then.

Over the decades the Supreme Court has come to use a shorthand in discussing the Due Process Clause. They don't re-invent the wheel everytime they make a decision. The fact that they don't rediscuss things they have already discussed scores of times doesn't mean they are ignoring those things.



Really? Funny, I seem to recall you saying something else on this topic. Let's see...

Cute. I didn't contradict myself. Look again at what I said both times. The second time I was clearly saying that the Bill of Rights applies to the states because the 14th Amendment amended the Constitution. Acting like I contradicted myself allows you to ignore the substance of my point.

I posit a fundamentally different system than the one you have. I think it's wonderfully consistent with the one the founders created.

You posit a fundamentally different system than the ones the Founders created themselves. The makers of judicial review were the Founders themselves and they did not treat the Constitution in the artificial way you propose.

Those earlier definitions of ex post facto rely on a false dichotomy with other retrospective laws. There is no difference in kind between the two, so those definitions are clearly incorrect.

But given that, I wouldn't be opposed to SCOTUS ruling this section of the constitution uninterpretable.

Meh. You asked for evidence of the meaning of ex post facto that were earlier than the Consitution. Now that you have such definitions, you don't like them. Rather than simply admit you've been wrong about what ex post facto means you are willing to declare it uninterpretable. So much for strict construction.

Yes, it's called logic.
It's not logic. It's stubbornness.

Do you really mean to suggest that there is no logical way to construe the meaning of a statement? Do you know what "to construe" means? Obviously, every single sentence that is understood has had its meaning construed by the person understanding it. You claim that the position of strict construction is logical, yet the implication that construction itself (as in the act of construing) is not a logical action is, itself, illogical.

I've only skimmed your on-going debate with Cat-Tribe, but it seems to me your objection to a "flexible" reading of the Constitution is that different people might construe it in different ways. I say, so what if they do? That's what courts and lawyers are for, and for 1000s of years (way before the US Constitution), courts and lawyers were arguing, construing and deciding upon laws with perfectly functional efficiency. I fail to see why the possibility of different constructions should be considered a weakness at all. It has been standard operating procedure for the entirety of human civilization.

I suspect that, if we were to compare the rulings of strict constructionist judges in US history, we would find many different "constructions" of what they thought this or that clause of the Constitution meant, each claiming to be a strict construction even thought they may differ from each other. Unfortunately, I don't know where to look for such information. Perhaps Cat-Tribe could direct me to some sites.

Perhaps. But I maintain that the position of the living document camp necessarily leads to a nonsensical and powerless constitution that has been construed to mean nearly everything.
Yet you have so far not shown that to have ever happened. The US has had many, many decades of flexible readings of the Constitution, both liberal and conservative, and you have argued about flaws in several of the laws passed under such constructions. Yet none of those laws has sapped the power of the Constitution as a legal document, and further, none of them has as yet paralyzed or interfered with the running of the government, legal system, or private businesses and lives of citizens. You claim that viewpoint A will lead to such and such an outcome. I look at history and see no such effect. I am disinclined to reject that viewpoint on the basis of what amounts to nothing more than fortunetelling reading the tea leaves of your opinion.

No reasonable person could read the constitution and come up with all (or even a small fraction) of the judicial imaginings that have been attributed to it. That tells me that those decisions have nothing at all to do with the constitution.
This is not a statement of fact. It is nothing more than your opinion of the quality of some of US laws. The fact that you do not like some people's understanding of the Constitution does not prove that their understanding is unreasonable or not based on the Constitution.

I would agree. I think the US constitution is a very well written document, and easily the best-written of any constitution I have ever read.
The framers of the US Constitution also wrote other documents of equal quality, in which they made their intentions very clear. Among those intentions is the expectation that the US Constitution would be open to revision. Therefore, it is my position that the living document position is the correct one, with the proviso that it is possible to go too far, and that should be guarded against.

But I do not think the way to guard against too broad an interpretation is to disallow interpretation. Rather, I believe the judicial and legislative systems of trial, testing, debate, and the revisiting of precedents, is the best way to keep a vital, modern, living system of laws still solidly balanced upon the foundation of the Constitution.

Right, and Griswold is where the error occurs.

I don't think NAACP v. Alabama does protect more than a narrow literal interpretation. It protects everything that it necessary to protect the narrow literal interpretation. Without protecting privacy the way it did, it can't protect freedom of association. Since freedom of association is protected, privacy must also be protected in the ways Alabama describes. It follows perfectly logically.

Griswold, on the other hand, relies on induction. Alabama did not.

Isolating NAACP v. Alabama from the rest of Griswold is not to read Griswold fairly. Griswold explains how, just as the right of free association has a privacy aspect, so do many other parts of the Constitution. Together these privacy aspects form a logical basis for a general right to privacy.

And I'm not debating with you again about whether induction is valid.
Exactly. That's the problem. The constitution doesn't protect a general right to privacy. Nothing in the constitution says that. Nor is the existence of such a right a logical consequence of any combination of the constitution's contents. The only way to justify the existence of a right to privacy within the constitution is through induction, and that is akin to making it up.

To complain that the existence of a right can't be induced from the literal language of the constitution so they right doesn't exist is to violate the Ninth Amendment, both in letter and spirit.

Perhaps you don't understand how logic works. If the decision is correct, under strict construction, there is no need to offer persuasive arguments to justify a decision. The decision could simply demonstrate that the finding could not logically be otherwise and that would be it.

SCOTUS decisions like this one read like the efforts of a high school debating team.

The findings of law made by the court should be demonstrably true. Otherwise they're not based wholly in law.

Whoever said law is based wholly in demonsrable logic?

Your petty insults nonewithstanding, the Supreme Court does justify its decisions and those justifications provide guidance to the Court and to the public at large.


Have you not been listening? The ninth amendment does not, at any point, state that any unenumerated rights exist. Not once.

No, it states that the enumeration of some rights doesn't leave those rights left to the people unprotected. Thus, the Court can and should seek to protect rights other than those that are specifically enumerated. What about that is hard to understand?

Petty conceit?

Yes.

And you're wrong. The ninth amendment certainly can protect actual rights, and it might protect actual rights, but whether it does protect actual rights is not among the contents of the amendment.

Explained above.

To protect unenumerated rights. Duh.

Exactly. So why do you insist that the protection of an unemerated right isn't proper?

Madison doesn't need to be aware of the existence of any unenumerated rights for the amendment to be meaningful. He could be protecting future rights which don't yet exist, but he knows might come to exist (through whatever means are necessary to create rights). Or he might think there are fundamental rights that predate the constitution (as you claim), though that's a tougher position to justify given the complete absence of any reference to them within the constitution.

Again, your theoretical meaning of the Ninth Amendment stumbles both over the text and the clear legislative history. Madison made clear that there were fundamental rights retained by the people and that those rights were protected by the Constitution even though they are not enumerated.



Then what does the "without due process of law" clause mean? Does it have any meaning? You seem to be ignoring it entirely.

Good question. I've answered what "without due process of law" means. You haven't. Go for it.

Why do you think that? I see no reason to hold that opinion.

Literal meaning is the only meaning of which we can be sure.

Okay, what is the literal meaning of "due process of law," "establishment of religion," "cruel & unusual punishment"?

Which isn't knowable.

Meh.

You and I seem to disagree as to what "reasonable" means.

Apparently.

The judicial branch should perhaps explain what the law means, but they should be able to do that in a way that is demonstrably and indisputably correct.

And yet, sometimes there are dissenting opinions. Why is that? That means the law mean something else - retroactively - if there were different judges on the bench. Do you honestly think that's a good thing?


So every SCOTUS decision -- hell, every court decision -- for the last 200 years should have been unanimous and unquestionably correct?

Can you even name a single SCOTUS decision that meets your criteria of correctness? I don't think there is one.

The system simply isn't designed that way. The Founders didn't act that way.

I'm not sure you could, which is why it's such a terrible idea. The constitution is already meaningless if it doesn't always mean exactly what it says, without expansion or deviation under any circumstances.

Thank you for conceding my point. The Ninth and Fourteenth Amendments don't satisfy you because no conceivable amendment could satisfy you.

But feel free to give an example of the Constitution only meaning what it says, without explanation or deviation. Show how that would lead to a desirable result in some cases.


You asked for someone who supported strict constructionism to explain why. I'm trying to do that, and so far I think I'm doing a really good job.

Actually, you aren't because what you are defending is not strict construction, but an entirely different constitutional system.

What should be relevant to a judicial ruling on the constitution should be the text of the constitution. Nothing less; nothing more.

Why?

I applaud Cat-Tribe for the observation I bolded, you were quite right. And am I the only person here bothered by Llewdor, a Canadian, presuming to interpret our Constitution for us? I would never assume I understood Canadian law better than he.

It goes to show that a person's confidence in their own expertise is in inverse proportion to the breadth of that expertise. I think we Americans have been very good to Llewdor in not heaping on him the abuse we would likely have gotten for daring to go so far in critiquing some other country's legal system -- especially since he started out by declaring his own ignorance of our laws.

I don't presume to understand US law better than you. I'm sure I don't. Even US constitutional law has clearly extended well beyond the text of the constitution in ways that I find entirely unpredictable.

I may, however, be claiming to understand language better than you.
That remark is not only belligerently insulting, it's also apparently self-contradictory. You say you do not presume to understand US law, but you then go on to presume to understand the US Constitution, which is a US legal document, and arguably the very foundation and heart of US law, in as much as it documents a body of US law. If you do not understand US law, how can you credibly claim to understand the US Constitution? Judging by the arguments you have presented here, you cannot.

That remark is not only belligerently insulting, it's also apparently self-contradictory. You say you do not presume to understand US law, but you then go on to presume to understand the US Constitution, which is a US legal document, and arguably the very foundation and heart of US law, in as much as it documents a body of US law. If you do not understand US law, how can you credibly claim to understand the US Constitution? Judging by the arguments you have presented here, you cannot.

It wasn't even impressive as insults go, either. This is the guy who thinks he understands language better than me? Please.:rolleyes:

That remark is not only belligerently insulting, it's also apparently self-contradictory. You say you do not presume to understand US law, but you then go on to presume to understand the US Constitution, which is a US legal document, and arguably the very foundation and heart of US law, in as much as it documents a body of US law.
Given that I described the US constitution as entirely unpredictable, I think it's clear I don't understand it. Why you think I do is unknown to me.
But feel free to give an example of the Constitution only meaning what it says, without explanation or deviation.
Every document necessarily means only what it says. That's how the language works.
Show how that would lead to a desirable result in some cases.
It would be desirable in its predictability.
To complain that the existence of a right can't be induced from the literal language of the constitution so they right doesn't exist is to violate the Ninth Amendment, both in letter and spirit.
One doesn't need to conclude that a right doesn't exist - one must only fail to conclude that it does. And failing to conclude that an unenumerated right exists is absolutely not a violation of the letter of the ninth amendment.

Of course, nothing can be a violation of the spirit of the ninth amendment, as it doesn't have one. No document does.
Whoever said law is based wholly in demonsrable logic?
Reason is based wholly in demonstrably logic. Any legal system that isn't is therefore unreasonable.
And I'm not debating with you again about whether induction is valid.
Of course not. It's demonstrably invalid.

Every document necessarily means only what it says. That's how the language works.

No.

No.
See? That was wonderfully clear and concise.

And wrong.

See? That was wonderfully clear and concise.

And absolutely does not mean "what is says" independent of context and explanation.

Indeed, "no" is completely meaningless without those elements. "No" to what? How?

*snip*


You have rather radically narrowed the scope of the debate -- leaving undealt with a number of points I was making and challenges of your logic.
For example:

1. Okay, what is the literal meaning of "due process of law," "establishment of religion," "cruel & unusual punishment"?

2. So every SCOTUS decision -- hell, every court decision -- for the last 200 years should have been unanimous and unquestionably correct? Can you even name a single SCOTUS decision that meets your criteria of correctness? I don't think there is one. The system simply isn't designed that way. The Founders didn't act that way.

You have rather radically narrowed the scope of the debate -- leaving undealt with a number of points I was making and challenges of your logic.
For example:

1. Okay, what is the literal meaning of "due process of law," "establishment of religion," "cruel & unusual punishment"?
"Due process of law" - Proper legal procedures, including the right to have a trial, to have access to an attorney, to be informed of the charges against oneself, to not be charged excessive bail, etc.

"Establishment of religion" - A government establishment of a religion as the official state faith.

"Cruel & unusual punishment" - Vague, for the purpose of allowing this idea to transform with the values of society at different times in history. Of course, the judgement on what constitues these types of punishment was meant to be left up to the discretion of the people and their elected representatives.

To complain that the existence of a right can't be induced from the literal language of the constitution so they right doesn't exist is to violate the Ninth Amendment, both in letter and spirit.
True. The Ninth Amendment was drafted so that the government could not interpret the Bill of Rights as being the sole source of civil rights available to Americans. The purpose was to allow for legislatures and the people themselves to claim the existence of further civil liberties beyond those enumerated in the Bill of Rights, and allow them to codify these unenumerated rights into law. Some, however, erroneously believe that the Ninth Amendment should be used by judges to incorporate unenumerated rights into the Constitution. Since the concept of judicial review did not exist when the Constitution was drafted, it's clear that the Founders never intended for the Ninth Amendment to be a blank check for judges to decide what these unenumerated rights are. Indeed, even the most of liberal judges avoid using the Ninth Amendment as the sole basis for their rulings due to the obvious ridiculous nature of it being such a limitless source of rights that the judiciary may declare to exist.

I know this will probably scare anyone away from claiming they are a strict constructionist, but I want to move the debate along if possible.

As a "strict constructionist," how do you deal with the following:
(1) the 14th Amendment
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
(3) the 9th Amendment
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

Do you really wish to insist that none of these are protected by the Constitution?

1) Quite carefully.
2) Note that these decisions are the works of judges with very flawed interpretations of the Constitution and their specific duties.
3) Explained in my last post.
4) Again, explained in my last post. The concept of judicial review did not exist at the time of the drafting of the Constitution -- clearly, the Founders intended for these unenumerated rights to be determined through the avenue that they did create: the legislative branch, or by direct vote of the people (hence the our country's label of "Democratic Republic").
5) I wish to insist that many of these rights are accepted freedoms that would stand little chance of being contested by the people or their representatives.

"Due process of law" - Proper legal procedures, including the right to have a trial, to have access to an attorney, to be informed of the charges against oneself, to not be charged excessive bail, etc.

"Establishment of religion" - A government establishment of a religion as the official state faith.

"Cruel & unusual punishment" - Vague, for the purpose of allowing this idea to transform with the values of society at different times in history. Of course, the judgement on what constitues these types of punishment was meant to be left up to the discretion of the people and their elected representatives.

I'll deal with these answers later -- after Llewdor has had a shot at it. The challenge was specific to an argument he and I were having.

True.

Yep. It is. You should have stopped there.

The Ninth Amendment was drafted so that the government could not interpret the Bill of Rights as being the sole source of civil rights available to Americans. The purpose was to allow for legislatures and the people themselves to claim the existence of further civil liberties beyond those enumerated in the Bill of Rights, and allow them to codify these unenumerated rights into law.

That "purpose" makes no sense. Additional rights can always be enumerated through additional amendments. The legislature and the people do not need permission to enumerate rights.

Some, however, erroneously believe that the Ninth Amendment should be used by judges to incorporate unenumerated rights into the Constitution. Since the concept of judicial review did not exist when the Constitution was drafted, it's clear that the Founders never intended for the Ninth Amendment to be a blank check for judges to decide what these unenumerated rights are.

Your premise is faulty. Read The Federalist Papers (http://www.foundingfathers.info/federalistpapers/fedindex.htm) regarding the judiciary.

Judicial review was among the powers for which the judiciary was intended.

Indeed, even the most of liberal judges avoid using the Ninth Amendment as the sole basis for their rulings due to the obvious ridiculous nature of it being such a limitless source of rights that the judiciary may declare to exist.

I never said the Ninth Amendment should be the sole basis of rulings about unemerated rights. I did say that the argument that there are no unemerated rights stumbles over the Ninth Amendment. See the difference?

1) Quite carefully.

:p Funny, but not an answer.

2) Note that these decisions are the works of judges with very flawed interpretations of the Constitution and their specific duties.

All of the scores of decisions made regarding the 14th Amendment in the last 120 years or so are not just wrong but also based on a flawed interpertation of the role of the judiciary?

You'll have to actually back that up with some argument. A sweeping generalization simply doesn't cut it.

3) Explained in my last post.

And answered above. But you said I was right that the Ninth Amendment contradicts the argument that there are no unemerated rights.

4) Again, explained in my last post. The concept of judicial review did not exist at the time of the drafting of the Constitution -- clearly, the Founders intended for these unenumerated rights to be determined through the avenue that they did create: the legislative branch, or by direct vote of the people (hence the our country's label of "Democratic Republic").

Again, the concept of judicial review was part of the original understanding of the functions of the judiciary. So your premise is wrong.

5) I wish to insist that many of these rights are accepted freedoms that would stand little chance of being contested by the people or their representatives.

That's nice. But at least two problems:

1. There is a big difference between "little chance of being contested" and "protected by the Constitution." The former leaves rights open to the whim of the majority.

2. Each of those rights has been impinged upon in our not-so-distant history and required SCOTUS to protect it. So not only do they have a chance of being contested, they actually have been contested.

Originally Posted by Muravyets
That remark is not only belligerently insulting, it's also apparently self-contradictory. You say you do not presume to understand US law, but you then go on to presume to understand the US Constitution, which is a US legal document, and arguably the very foundation and heart of US law, in as much as it documents a body of US law.
Given that I described the US constitution as entirely unpredictable, I think it's clear I don't understand it. Why you think I do is unknown to me.
<snip>
Then maybe it's time for you to bow to your own lack of understanding and stop arguing with and contradicting people who have greater understanding. Frankly, I think you've got some impressive nerve to tell Americans how wrong we are about our own laws at the same time you keep insisting you don't understand them yourself. I personally wouldn't have the chutzpah to try that stunt when discussing the laws of another country.

That "purpose" makes no sense. Additional rights can always be enumerated through additional amendments. The legislature and the people do not need permission to enumerate rights.
One of the main complaints against drafting a Bill of Rights was that having such liberties spelled out would imply that the federal government had absolute power outside of these protections. Hence, the birth of the Ninth Amendment, which confirms that this is not the case. Your point is feasible -- why does the legislature need permission to codify further rights into law? -- but nevertheless, that is the history behind the drafting of the Ninth Amendment.

Your premise is faulty. Read The Federalist Papers (http://www.foundingfathers.info/federalistpapers/fedindex.htm) regarding the judiciary.

Judicial review was among the powers for which the judiciary was intended.
The power of the courts to strike down laws was not established until Marbury v. Madison, several years after the Constitution was passed.



I never said the Ninth Amendment should be the sole basis of rulings about unemerated rights. I did say that the argument that there are no unemerated rights stumbles over the Ninth Amendment. See the difference?
I wasn't addressing you in particular; I was simply addressing arguments that I've heard regarding the Ninth Amendment and the judiciary's role in relation to it.
All of the scores of decisions made regarding the 14th Amendment in the last 120 years or so are not just wrong but also based on a flawed interpertation of the role of the judiciary?

[QUOTE]You'll have to actually back that up with some argument. A sweeping generalization simply doesn't cut it.
Well, off the top of my head:
1) The "liberty" protected by the 14th Amendment somehow confers a Constitutional right of general privacy which implies the right to obtain an abortion up until a certain time in the pregnancy. Right... (Planned Parenthood v. Casey)
2) "Due process" protects the rights of homosexuals to engage in sodomy, but "equal protection" does not require that they be given the same legal rights as heterosexuals (Lawrence v. Texas).
3) The general idea that the words "due process" can be construed to be related to the "fairness" (arbitrarily decided by the judiciary) of the laws passed by the legislature ("substantive due process").
That's nice. But at least two problems:

1. There is a big difference between "little chance of being contested" and "protected by the Constitution." The former leaves rights open to the whim of the majority.
Yet, the protection of the rights is not enumerated in the Constitution, so they can't be "Constitutional" rights. They can, however, be decided by "the people", by way of direct vote or by their elected officials.

2. Each of those rights has been impinged upon in our not-so-distant history and required SCOTUS to protect it. So not only do they have a chance of being contested, they actually have been contested.

Yet, they are not still not constitutional rights just because you want them to be. Even so, I doubt very much people would stand for the government to deprive themselves and their neighbors of the various rights you mentioned.

The power of the courts to strike down laws was not established until Marbury v. Madison, several years after the Constitution was passed.You're half right. Marbury was effectively the final word on the argument, but Alexander Hamilton clearly spelled out the principle in Federalist #78.

The concept of judicial review did not exist at the time of the drafting of the Constitution -- clearly, the Founders intended for these unenumerated rights to be determined through the avenue that they did create: the legislative branch, or by direct vote of the people (hence the our country's label of "Democratic Republic").

ORLY?

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents

Alexander Hamilton, Federalist #78

Failed

One of the main complaints against drafting a Bill of Rights was that having such liberties spelled out would imply that the federal government had absolute power outside of these protections. Hence, the birth of the Ninth Amendment, which confirms that this is not the case. Your point is feasible -- why does the legislature need permission to codify further rights into law? -- but nevertheless, that is the history behind the drafting of the Ninth Amendment.

Meh. I've already gone over the legislative history of the Ninth Amendment in this thread. You are close, but there is a critical difference: the Ninth Amendment was not just intended to be a license to legislatures. It was intended to stop the argument -- which you appear to be making -- that only enumerated rights are protected by the Constitution.


The power of the courts to strike down laws was not established until Marbury v. Madison, several years after the Constitution was passed.

I pointed out this wasn't true, as documented in The Federalist Papers. Others have since pointed out specific language to that effect in Federalist #78.

Your premise is simply false.


I wasn't addressing you in particular; I was simply addressing arguments that I've heard regarding the Ninth Amendment and the judiciary's role in relation to it.

So you were just addressing strawmen. How nice.

Well, off the top of my head:
1) The "liberty" protected by the 14th Amendment somehow confers a Constitutional right of general privacy which implies the right to obtain an abortion up until a certain time in the pregnancy. Right... (Planned Parenthood v. Casey)
2) "Due process" protects the rights of homosexuals to engage in sodomy, but "equal protection" does not require that they be given the same legal rights as heterosexuals (Lawrence v. Texas).
3) The general idea that the words "due process" can be construed to be related to the "fairness" (arbitrarily decided by the judiciary) of the laws passed by the legislature ("substantive due process").


1. So your rebuttal to scores of case over 120 years is that you don't like the outcome of two of them and you have a vague objection to the alleged approach of some of them (which you don't quite get right)? How not persuasive.

2. Roe v. Wade (http://laws.findlaw.com/us/410/113.html), 410 U.S. 113 (1973), and Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html), 505 U.S. 833 (1992), were rightly decided. The existence of a right to privacy is well established. The concept of control over one's own body is inherent in constitutional freedom:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Moreover, the right to abortion does not go away after the point of viability, as you seem to say. Rather, the interest of the state in protecting the fetus and regulating pregnancy increases to a point that abortion can be banned except where necessary to preserve the life or health of the mother.

3. You should read Lawrence v. Texas (http://laws.findlaw.com/us/000/02-102.html), 539 U.S. 558 (2003), again because you horribly misconstrue it. I quote from the case:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
...
...The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.


Thus at issue was more than just a "right to sodomy."

And Lawrence didn't rule that equal protection doesn't apply to homosexuals. Again, from the case:

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.


4. As to your objection to the idea of substantive due process, it is too vague and minor to merit response. As I have said, the concept is ingrained in literally scores of cases decided over a period of over 120 years. Accordingly, scores of Justices have agreed on this concept over time.


Yet, the protection of the rights is not enumerated in the Constitution, so they can't be "Constitutional" rights. They can, however, be decided by "the people", by way of direct vote or by their elected officials.

1. Here you directly contradict the Ninth Amendment by insisting that only enumerated rights are protected by the Constitution.

2. The liberty protected by the 5th and 14th Amendments includes unemerated rights.


Yet, they are not still not constitutional rights just because you want them to be. Even so, I doubt very much people would stand for the government to deprive themselves and their neighbors of the various rights you mentioned.

You ignore the substance of my post which is that popular government has sought to impinge on each of these fundamental liberties and that assault on our rights has had to be repelled by the courts -- specifically by SCOTUS. So, yes, these rights do require constitutional protection and not just be subject to the whim of the majority.

Why is it that so many people who try to argue constitutional law make so many blatant and critical errors that it becomes extremely obvious that they are not in any actual way educated as to what the constitution says.

Why is it that so many people who try to argue constitutional law make so many blatant and critical errors that it becomes extremely obvious that they are not in any actual way educated as to what the constitution says.

Because answers on fly don't require effort.

Kudos on the Federalist papers reference. Few people read them anymore. :)

Why is it that so many people who try to argue constitutional law make so many blatant and critical errors that it becomes extremely obvious that they are not in any actual way educated as to what the constitution says.
It's especially annoying when one considers how easy it is to find out what the Constitution says. There is absolutely no reason why these people could not be writing their posts with the text of the Constitution open in another window at the same time, for reference.

I recently came across the case of Robertson v. Baldwin (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=165&invol=275), 165 U.S. 275 (1897), in which the Court addressed the scope of the term “involuntary servitude” in the Thirteenth Amendment. The relevant language of Section 1 of the Thirteenth Amendment is:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

In ruling that laws against desertion of sailors did not violate the Thirteenth Amendment, the Court explained:

The question whether sections 4598 and 4599 conflict with the thirteenth amendment, forbidding slavery and involuntary servitude, depends upon the construction to be given to the term 'involuntary servitude.' Does the epithet 'involuntary' attach to the word 'servitude' continuously, and make illegal any service which becomes involuntary at any time during its existence? or does it attach only at the inception of the servitude, and characterize it as unlawful because unlawfully entered into? If the former be the true construction, then no one, not even a soldier, sailor, or apprentice, can surrender his liberty, even for a day; and the soldier may desert his regiment upon the eve of battle, or the sailor abandon his ship at any intermediate port or landing, or even in a storm at sea, provided, only, he can find means of escaping to another vessel. If the latter, then an individual may, for a valuable consideration, contract for the surrender of his personal liberty for a definite time and for a recognized purpose, and subordinate his going and coming to the will of another during the continuance of the contract; not that all such contracts would be lawful, but that a servitude which was knowingly and willingly entered into could not be termed 'involuntary.' Thus, if one should agree, for a yearly wage, to serve another in a particular capacity during his life, and never to leave his estate without his consent, the contract might not be enforceable for the want of a legal remedy, or might be void upon grounds of public policy; but the servitude could not be properly termed 'involuntary.' Such agreement for a limited personal servitude at one time were very common in England, and by statute of June 17, 1823 (4 Geo. IV. c. 34, 3), it was enacted that if any servant in husbandry, or any artificer, calico printer, handcraftsman, miner, collier, keelman, pitman, glassman, potter, laborer or other person, should contract to serve another for a definite time, and should desert such service during the term of the contract, he was made liable to a criminal punishment. The breach of a contract for personal service has not, however, been recognized in this country as involving a liability to criminal punishment, except in the cases of soldiers, sailors, and possibly some others; nor would public opinion tolerate a statute to that effect.

But we are also of opinion that, even if the contract of a seaman could be considered within the letter of the thirteenth amendment, it is not, within its spirit, a case of involuntary servitude. The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press ( article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant's motion (U. S. v. Ball, 163 U.S. 662, 627 , 16 S. Sup. Ct. 1192); nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment (Brown v. Walker, 161 U.S. 591 , 16 Sup. Ct. 644, and cases cited). Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.

The prohibition of slavery, in the thirteenth amendment, is well known to have been adopted with reference to a state of affairs which had existed in certain states of the Union since the foundation of the government, while the addition of the words 'involuntary servitude' were said, in the Slaughterhouse Cases, 16 Wall. 36, to have been intended to cover the system of Mexican peonage and the Chinese coolie trade, the practical operation of which might have been a revival of the institution of slavery under a different and less offensive name. It is clear, however, that the amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional, such as military and naval enlistments, or to disturb the right of parents and guardians to the custody of their minor children or wards. The amendment, however, makes no distinction between a public and a private service. To say that persons engaged in a public service are not within the amendment is to admit that there are exceptions to its general language, and the further question is at once presented, where shall the line be drawn? We know of no better answer to make than to say that services which have from time immemorial been treated as exceptional shall not be regarded as within its purview.

...[Discusses history of laws against desertion]...

In the face of this legislation upon the subject of desertion and absence without leave, which was in force in this country for more than 60 years before the thirteenth amendment was adopted, and similar legislation abroad from time immemorial, it cannot be open to doubt that the provision against involuntary servitude was never intended to apply to their contracts.

165 U.S. at 280-288 (emphasis added).

There was a dissent by Justice Harlan, 165 U.S. 288-303, in which he argued (among other things) that the ruling of the majority was contrary to the plain language of the Thirteenth Amendment.

Do you agree with the majority or with Justice Harlan? What about the Court's explanation that the Constitution codified concepts already known?

Interesting question, CT.

Of course, the most obvious difference between slavery and involuntary servitude and the kinds of contracts of servitude discussed in your citation is the part about whether it is voluntary or involuntary.

The other most obvious difference is that in slavery and involuntary servitude, the slave/servant does not usually get paid for their service, whereas in voluntary contracts of servitude, the person in service does get paid.

Also, a contract binds both parties, and action can be taken against either party if they default on their obligations -- the one to serve, and the other to pay.

So I guess I would agree with the decision that the prohibition against involuntary servitude does not apply to persons in military service with some caveats, as follows:

1) Under a legal contract, BOTH parties must fulfill their obligations. If the sailor/soldier deserts, they default, but if the government fails to deliver payment, benefits, and other compensations promised in the contract, they also default. Either default invalidates the contract. Clearly, in a war zone, personnel cannot simply desert without creating more danger to those they leave behind, so I suppose the same kinds of restrictions should apply to them as to police, firefighters and other emergency civilian personnel who are not allowed to go on strike over contract disputes, and so forth. Desertion may not be a permissable thing, but there must be some acknowledgment that the other side can also default and some mechanism be put in place to allow military personnel to force compliance by the government.

2) I am not certain that the crime of desertion should always be treated with the same level of severity. Straight-up desertion in war is one thing. Desertion or going AWOL from peace time duty is something else. And if a soldier were to desert/go AWOL in order to avoid carrying out illegal orders, that is something entirely different. Also if desertions can be proven to have been caused by gross negligence on the part of command -- such as failure to deliver equipment or food, that should be taken into account and the penalty to the deserters adjusted accordingly.

3) I also believe that if the contract of servitude is to be fair, then it must be equal, in both benefit to the parties and in penalties for default. So if it is a crime to desert from duty, then it should also be a crime to fail to deliver payment for duty and other things required for the personnel to perform their duties. People are putting their lives on the line in military service -- we cannot make it a crime for them to try to preserve their lives, while not making it a crime to increase the danger to their lives through incompetent or corrupt command.

4) The fact that the decision acknowledges that military service is a form of contract but does not go into detail to address the equal and mutual obligations of the parties to the contract and how that should affect punishment for defaults, makes me say that this decision is not entirely helpful in resolving the question.

Finally, I would add that I do think that the Constitution is a codification of legal concepts that were already in existence, in application, and well known and understood. Its foundation in British law, especially British Common Law, seems pretty obvious to me, as does the fact that it was always meant to be applied on a case-by-case basis, in order to account proper exceptions. Another well-established principle for many centuries has been the idea that an absolute and inflexible law is not a just one. This is another reason why I adhere to the "living document" point of view.

1. Okay, what is the literal meaning of "due process of law," "establishment of religion," "cruel & unusual punishment"?
I don't pretend to have answers to that. But for those phrases to have meaning in the law, either they need literal meaning or they need to be defined within the law.

This isn't unusual in legal documents. Read any contract and find the first paragraph filled with definitions.
2. So every SCOTUS decision -- hell, every court decision -- for the last 200 years should have been unanimous and unquestionably correct?
For them to be good decisions, yes.
Can you even name a single SCOTUS decision that meets your criteria of correctness?
No. The court has consistently interpreted the law entirely too broadly, thus opening itself to dispute. In any decision that wasn't unanimous, at least some of the justices must have been in error.

Look at Riggs v. Palmer again. Judge John Clinton Gray wrote a dissenting opinion that I consider far more correct than the actual decision. The court cannot simply create or imagine such statutes so as to obtain a morally pleasing result without violating fairness.
The system simply isn't designed that way.
The system isn't used that way. There's no reason it couldn't be.

The entire point of having a written Constitution is to have a standard to hold the government to. Granted, we recognize that it isn't perfect, which is why we have the amendments. Still, if we allow for a "loose" interpretation where the Constitution can allow anything based on the times, we lose that standard.

Example: the last 70 years (roughly) has seen the government expand into society in the area of social welfare programs. This would be hard to justify according to a strict interpretation (even with the elastic clause). In the current administration, we have seen another expansion into society, but in the area of security, most of which would be hard to justify in a strict interpretation. It seems to me that it's the same problem, just different circumstances. Once we have lost the idea of the standard to hold the government to, anything goes.

..................
This isn't unusual in legal documents. Read any contract and find the first paragraph filled with definitions.
......

Read any other contract and find not a single definition.

I don't pretend to have answers to that. But for those phrases to have meaning in the law, either they need literal meaning or they need to be defined within the law.

This isn't unusual in legal documents. Read any contract and find the first paragraph filled with definitions.

The U.S. Constitution doesn't have a definitions section, so that is a moot point.

Thus, those phrases (1) have a literal meaning --which you appear to concede you can't proffer--, (2) have a meaning defined otherwise in the law, or (3) have no meaning.

Hence, we are at the nub of the difference between your position and mine. I say those phrases are meaningful and can be defined relying on sources outside the document itself. (This is also often true of contracts, BTW). You are left with the position that much of the Constitution is meaningless because it doesn't meet your predetermined notions of how a Constitution should be written.

I take the document as written and as intended and as meaningful. You simply don't like the document.


For them to be good decisions, yes.

The absurdity of your position speaks for itself.

No. The court has consistently interpreted the law entirely too broadly, thus opening itself to dispute. In any decision that wasn't unanimous, at least some of the justices must have been in error.

But even unanimous decision of the Supreme Court you don't agree with. And you disagree with the role that the Founders themselves laid out for the Court.

What you are advocating is not a viewpoint of the Constitution as it is written and applied, but rather a notion of an utterly different system with a different Constitution.

Look at Riggs v. Palmer again. Judge John Clinton Gray wrote a dissenting opinion that I consider far more correct than the actual decision. The court cannot simply create or imagine such statutes so as to obtain a morally pleasing result without violating fairness.

Ah, Riggs v. Palmer (http://www.courts.state.ny.us/reporter/archives/riggs_palmer.htm), 115 N.Y. 506 (1889). The last refusge of the strict constructionist: "but Riggs v. Palmer was wrong!"

First of all, so what if it was? Riggs is an obscure New York state Court of Appeals decision from 1889. It has nothing to do with the Constitution. It isn't even a particularly important decision. The only thing that makes it notable is that the methodology and outcome of the majority opinion is controversial.

Second, as the majority explained, not all law in the United States is contained in statutes. We are a land of common law. And common law principles can decide a case even where statutes are silent--in fact, especially where statutes are silent.

Instead of talking about Riggs, which is really irrelevant, please take up my challenge to talk about Robertson v. Baldwin (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=165&invol=275), 165 U.S. 275 (1897).

The system isn't used that way. There's no reason it couldn't be.

No. There are many reasons it couldn't be. First and foremost, because the Constitution isn't written that way and the judiciary isn't designed to work that way. I need not go into other reasons.

The entire point of having a written Constitution is to have a standard to hold the government to. Granted, we recognize that it isn't perfect, which is why we have the amendments. Still, if we allow for a "loose" interpretation where the Constitution can allow anything based on the times, we lose that standard.

Example: the last 70 years (roughly) has seen the government expand into society in the area of social welfare programs. This would be hard to justify according to a strict interpretation (even with the elastic clause). In the current administration, we have seen another expansion into society, but in the area of security, most of which would be hard to justify in a strict interpretation. It seems to me that it's the same problem, just different circumstances. Once we have lost the idea of the standard to hold the government to, anything goes.

1. Thanks for joining the conversation. :cool: Perhaps you can address some of the points I have raised, especially here (http://forums.jolt.co.uk/showpost.php?p=13137118&postcount=12). I also invite you to discuss Robertson v. Baldwin (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=165&invol=275), 165 U.S. 275 (1897), as I have laid it out here (http://forums.jolt.co.uk/showpost.php?p=13245873&postcount=163).

2. You posit a false dichotomy. The alternative to strict construction is not simply "anything goes," but rather approaches that take the language of the Constitution seriously, but also take the intent of the language, the historical meanings of the language, the history of our nation, etc., into account.

3. The argument that social welfare programs violate a strict construction of the Constitution is one that is not obvious on its face. You'll have to do better than merely boldly assert it.

4. The current administration's abuse of the Constitution has nothing whatsoever to do with a "loose" interpretation of the Constitution. To the contrary, you find that this administration tends to adhere to the "strict constructionist" position -- even while openly violating both the literal letter and the spirit of the Constitution.

as society evolves so must our laws.

...

Example: the last 70 years (roughly) has seen the government expand into society in the area of social welfare programs. This would be hard to justify according to a strict interpretation (even with the elastic clause). ...

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, 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.

You were saying?

From time to time during legal arguments, some NSGers will claim to support "strict construction" of the U.S. Constitution.

Most commonly strict construction is associate with the argument that things not explicitly stated by the text of the Constitution -- abortion, for example-- are not protected by the Constitution.

Doesn't Amendment IX render that argument senseless bullshit?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Just because it ain't in there doesn't mean it's not a right.

Plus the argument about abortion misses the point - it's not the right to an abortion that is protected, but rather the right to privacy, which is due process and is again in an amendment.

My opinion - the Constitution is a fundamentally Liberal (in the classic sense) document, and at any given time we rarely live up to it, often because of these strict constructionist people who's real goal is to get us to ignore the fundamentally Liberal nature of US government.

Of course I don't imagine you disagree with my assessment, judging by your tone.

You are left with the position that much of the Constitution is meaningless because it doesn't meet your predetermined notions of how a Constitution should be written.
I don't really care how the constitution is written. I just want in applied in a consistent and predictable manner, and the current use is neither of those things.
I take the document as written and as intended and as meaningful.
So you're just assuming that all the passages are meant to convey meaning, even if they literally don't. Even by your own admission your position is baseless.
You simply don't like the document.
Actually, I do. The US constitution is one of the better written constitutions. It pwns the Canadian constitution (which directly contradicts itself a number of times).
But even unanimous decision of the Supreme Court you don't agree with.
Where did I say unanimity guaranteed correctness? The courts manage to make unanimous mistakes because they're trying to decide what the law should say, not what the law does say. I don't see how that's their job.
And you disagree with the role that the Founders themselves laid out for the Court.
I hope that role is written down somewhere in law, otherwise you're just appealing to extra-legal sources again and making a circular argument.

In fact, your entire position here has been circular; that's what's been bothering me. You've been been arguing for broad construction, and as support you point to eztra-legal sources, which are only relevant if we already accept broad construction.
What you are advocating is not a viewpoint of the Constitution as it is written and applied, but rather a notion of an utterly different system with a different Constitution.
I'm advocating a viewpoint of the constitution as it is written. Of course not "as it is applied" - that would require I accept board construction.

The way you're describing it here, the system necessarily requires broad construction because it's been using broad construction, and that's patently false. You're presupposing that the constitution is being and has been used correctly. But that's what we're debating - you can't presuppose your position is correct.
First of all, so what if it was? Riggs is an obscure New York state Court of Appeals decision from 1889. It has nothing to do with the Constitution.
Not directly, no, but it is a broad construction of statute.
It isn't even a particularly important decision. The only thing that makes it notable is that the methodology and outcome of the majority opinion is controversial.
Controversial because it's obviously contrary to the relevant statute.
Second, as the majority explained, not all law in the United States is contained in statutes. We are a land of common law. And common law principles can decide a case even where statutes are silent--in fact, especially where statutes are silent.
First of all, the statutes weren't silent in Riggs. They clearly awarded the inheritance to Palmer. The court interevened and decided otherwise.
Instead of talking about Riggs, which is really irrelevant, please take up my challenge to talk about Robertson v. Baldwin (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=165&invol=275), 165 U.S. 275 (1897).
I'll look that one up. Thanks for the new case.
No. There are many reasons it couldn't be. First and foremost, because the Constitution isn't written that way and the judiciary isn't designed to work that way.
There's nothing systemic in the judiciary that prevents it from working that way (except perhaps the election of the judiciary, which forces judges to pander to popular whim - I fail to see why that's a good thing). And the document either had literal meaning or it doesn't. As long as it does, literal interpretation should work fine.

I don't really care how the constitution is written. I just want in applied in a consistent and predictable manner, and the current use is neither of those things.

So you're just assuming that all the passages are meant to convey meaning, even if they literally don't. Even by your own admission your position is baseless.

Actually, I do. The US constitution is one of the better written constitutions. It pwns the Canadian constitution (which directly contradicts itself a number of times).

I'm not going to respond point-by-point when you can't be bothered to respond to much of what I said.

The Constitution is filled with phrases that mean more than what is "literally" said. I just picked three as an example. Because you cannot apply a literal meaning to these phrases, you are forced to assume they are meaningless. This renders much of the Constitution meaningless.

The Founders were not simply spinning meaningless yarns when they used phrases like "ex post facto," "due process of law," "establishment of religion," and "cruel and unusual punishment." They weren't wasting their time and energy, because they knew those phrases had meaning that could be found elsewhere in law and history and in the ability of those who interpret the document to use their reason.

How you can possibly maintain that you are supporting the document as written when your position is most of it is meaningless is beyond me.

Where did I say unanimity guaranteed correctness? The courts manage to make unanimous mistakes because they're trying to decide what the law should say, not what the law does say. I don't see how that's their job.

The point is that no Founder viewed the Constitution as you do. Apparently no Supreme Court Justice -- or federal judge of any kind -- has ever viewed the Constitution as you do.

At least a little humility would say that perhaps the authors of the document -- if not those legal appointed to interpret it -- have a clearer idea of its meaning than you do.

I hope that role is written down somewhere in law, otherwise you're just appealing to extra-legal sources again and making a circular argument.

Um. Yes, the role of the judiciary is laid out in Article III of the Constitution.

Also, are you familiar with The Federalist Papers (http://thomas.loc.gov/home/histdox/fedpapers.html)?

The Federalist Papers are a series of 85 articles written by the authors of the Constitution in support of its ratification. The authors discuss at length the meaning of the Constitution as it was written. They explain the philosophy and motivation behind the document. You should check them out.

As has been pointed out by others in this thread, Federalist #78 (http://thomas.loc.gov/home/histdox/fed_78.html) is one of several that address the role of the judiciary.

In fact, your entire position here has been circular; that's what's been bothering me. You've been been arguing for broad construction, and as support you point to eztra-legal sources, which are only relevant if we already accept broad construction.

Taken in that light your position is entirely circular as well as you insist that only the written words of the document are relevant. Unlike my position, however, your position isn't even supported by the literal document--as your reading renders much of the document meaningless.

I'm advocating a viewpoint of the constitution as it is written. Of course not "as it is applied" - that would require I accept board construction.

The way you're describing it here, the system necessarily requires broad construction because it's been using broad construction, and that's patently false. You're presupposing that the constitution is being and has been used correctly. But that's what we're debating - you can't presuppose your position is correct.

No. I'm saying the system necessarily requires broader construction than you would allow because otherwise much of the Constitution is rendered meaningless. Interpretations of a document that render provisions of the document as meaningless are generally avoided -- especially so in the instance of the Constitution.

Not directly, no, but it is a broad construction of statute.

Controversial because it's obviously contrary to the relevant statute.

First of all, the statutes weren't silent in Riggs. They clearly awarded the inheritance to Palmer. The court interevened and decided otherwise.

It isn't a case involving broad construction of the statute. It is a case involving the invocation of common law to supplement and even contradict what otherwise would have been the result of the statute. The statute didn't address the specific considerations that made Riggs a difficult case -- someone murdering the testator in order to prevent him from changing the will to keep the murderer from inheriting.

I'm not saying the approach to the law taken in Riggs is ideal, but it isn't as obviously wrong as you suggest.

I'll look that one up. Thanks for the new case.

Your welcome. I look forward to your comments.

There's nothing systemic in the judiciary that prevents it from working that way (except perhaps the election of the judiciary, which forces judges to pander to popular whim - I fail to see why that's a good thing). And the document either had literal meaning or it doesn't. As long as it does, literal interpretation should work fine.

But by your own admission, much of the document doesn't have a plain, literal meaning. So you just wave your hands about and claim the document is meaningless. That doesn't "work fine."

Doesn't Amendment IX render that argument senseless bullshit?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Just because it ain't in there doesn't mean it's not a right.

Plus the argument about abortion misses the point - it's not the right to an abortion that is protected, but rather the right to privacy, which is due process and is again in an amendment.

My opinion - the Constitution is a fundamentally Liberal (in the classic sense) document, and at any given time we rarely live up to it, often because of these strict constructionist people who's real goal is to get us to ignore the fundamentally Liberal nature of US government.

Of course I don't imagine you disagree with my assessment, judging by your tone.

Yep. You are right in both your assessment of my assessment and in your assessment of the Constitution.

The Constitution is filled with phrases that mean more than what is "literally" said. I just picked three as an example. Because you cannot apply a literal meaning to these phrases, you are forced to assume they are meaningless. This renders much of the Constitution meaningless.

The Founders were not simply spinning meaningless yarns when they used phrases like "ex post facto," "due process of law," "establishment of religion," and "cruel and unusual punishment." They weren't wasting their time and energy, because they knew those phrases had meaning that could be found elsewhere in law and history and in the ability of those who interpret the document to use their reason.

How you can possibly maintain that you are supporting the document as written when your position is most of it is meaningless is beyond me.
It's beyond you because you're assuming all parts of the document have to have meaning. Why? Statutes contain obfuscatory passages to fool people into voting for them all the time. Why can't the same be true of the constitution?

I've long argued that treaties with indigenous Americans contain those passages. The courts disagree with me on that, as well.
The point is that no Founder viewed the Constitution as you do. Apparently no Supreme Court Justice -- or federal judge of any kind -- has ever viewed the Constitution as you do.
And I don't see how that's relevant. What the law actually says and what the law was meant to say (Founders' position) and what the law is previously described to have said (SCOTUS position) have no necessary connection.
At least a little humility would say that perhaps the authors of the document -- if not those legal appointed to interpret it -- have a clearer idea of its meaning than you do.
Given that they find meaning that isn't there, that's obviously untrue.
Um. Yes, the role of the judiciary is laid out in Article III of the Constitution.

Also, are you familiar with The Federalist Papers (http://thomas.loc.gov/home/histdox/fedpapers.html)?

The Federalist Papers are a series of 85 articles written by the authors of the Constitution in support of its ratification. The authors discuss at length the meaning of the Constitution as it was written. They explain the philosophy and motivation behind the document. You should check them out.

As has been pointed out by others in this thread, Federalist #78 (http://thomas.loc.gov/home/histdox/fed_78.html) is one of several that address the role of the judiciary.
I may have to read those as well, though as extra-legal sources I'm not sure why I should care.
Taken in that light your position is entirely circular as well as you insist that only the written words of the document are relevant.
So then we are at odds, but at least my position results in legal application that is universally fair.
Unlike my position, however, your position isn't even supported by the literal document--as your reading renders much of the document meaningless.
Again, only if you assume that meaninglessness isn't acceptable content.
No. I'm saying the system necessarily requires broader construction than you would allow because otherwise much of the Constitution is rendered meaningless. Interpretations of a document that render provisions of the document as meaningless are generally avoided -- especially so in the instance of the Constitution.
I don't see why. If a passage is literally meaningless, that should be obvious to any rational observer who reads it.
It isn't a case involving broad construction of the statute. It is a case involving the invocation of common law to supplement and even contradict what otherwise would have been the result of the statute.
That's my problem with it. The statute clearly lead to a different finding of law, but then this extra-legal source was used to directly contradict the statute. That was grossly unfair to Palmer and created for him extra penalties not described in law.
The statute didn't address the specific considerations that made Riggs a difficult case -- someone murdering the testator in order to prevent him from changing the will to keep the murderer from inheriting.

I'm not saying the approach to the law taken in Riggs is ideal, but it isn't as obviously wrong as you suggest.
Elmer Palmer satisfied every statutory requirement to inherit. He was the named heir by the testator's last will at the time of the testator's death. And the court decided otherwise. That's bad law.
Your welcome. I look forward to your comments.
I'm off to read it now.

I recently came across the case of Robertson v. Baldwin (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=165&invol=275), 165 U.S. 275 (1897), in which the Court addressed the scope of the term “involuntary servitude” in the Thirteenth Amendment.

-snip-

There was a dissent by Justice Harlan, 165 U.S. 288-303, in which he argued (among other things) that the ruling of the majority was contrary to the plain language of the Thirteenth Amendment.

Do you agree with the majority or with Justice Harlan?
Okay, here goes.

I agree with the majority. Involutary sevitude refers to servitude for which the servant did not volunteer. Unless the contract was signed under duress, contractual work clearly does not qualify as involuntary.

Harlan's mistake comes when he states, "A condition of enforced service, even for a limited period, in the private business of another, is a condition of involuntary servitude." That's not what involuntary means. Harlan is using involuntary as synonymous with unwilling, but that's not what the word means. Involuntary is a negation of voluntary, and voluntary service is service for which you volunteered. Whether you want to do it isn't relevant; whether you agreed to do it is what matters.

Harlan later makes a slippery slope argument that allowing contractual servitude of this sort could eventually lead to the reestablishment of slavery, which is absurd on two levels. First, Harlan already established that slavery consists of the ownership of one man by another, which these contracts do not do (even if they create similar outcomes, the ownership is never transferred). Second, slavery is explicitly prohibited by the thirteenth amendment, so it couldn't happen anyway.
What about the Court's explanation that the Constitution codified concepts already known?
The meat of the court's decision is that the statutory provision for punishment of contractually obligated deserters doesn't contradict the constitutional prohibition of involuntary servitude. I would accept that as obviously true, and I'm a bit surprised the court even heard the case.

The justification the majority offered is extraneous. The court often seems to present evidence to make its decision compelling on some principled basis, and I have no idea why that's necessary. The law says what the law says. Whether people think the law should say that is irrelevant. That decision is for the legislative branch to make.

......

Again, only if you assume that meaninglessness isn't acceptable content.

I don't see why. If a passage is literally meaningless, that should be obvious to any rational observer who reads it.

........

Pardon me for cherry-picking, but you obviously have your hands quite full in the debate, and I'd rather not distract you from it...at least not too heavily.

I gather that you are very fond of the positivist school. Correct me if wrong. Accordingly you want to stick to the text of the applicable law, and won't use other sources of law to interpret a legal text. Right? Correct me when I am off track.

So, here is a question, very related to the thread subject: Do you think that all rational observers see the same meaning, or meaninglessness, in a piece of legislation?

Is there, in your opinion, no need for interpretation, if the text is clear enough?

If so, can you provide one single written article of law, of such clarity?

regards,
Q

Correct me if wrong. Accordingly you want to stick to the text of the applicable law, and won't use other sources of law to interpret a legal text. Right? Correct me when I am off track.
Sort of. I wouldn't object to using other legal sources, just not extra-legal sources. If two laws about seemingly unrelated things, when taken together, necessarily required something else to be true, I would accept that conclusion as supported by law.

But your on the right track.
So, here is a question, very related to the thread subject: Do you think that all rational observers see the same meaning, or meaninglessness, in a piece of legislation?
Yes. Undeniably.
Is there, in your opinion, no need for interpretation, if the text is clear enough?
Correct.
If so, can you provide one single written article of law, of such clarity?
That might take some looking.

It's beyond you because you're assuming all parts of the document have to have meaning. Why? Statutes contain obfuscatory passages to fool people into voting for them all the time. Why can't the same be true of the constitution?

First, a basic principle of statutory interpretation is that courts should “give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.” Montclair v. Ramsdell (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=107&invol=147&pageno=152), 107 U.S. 147, 152 (1883). The modern variant is that statutes should be construed “so as to avoid rendering superfluous” any statutory language. Astoria Federal Savings & Loan Ass’n v. Solimino (http://supreme.justia.com/us/501/104/case.html), 501 U.S. 104, 112 (1991); In other words, it is, a cardinal principle of statutory construction that one must " `give effect, if possible, to every clause and word of a statute.' " United States v. Menasche (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=348&invol=528&pageno=538), 348 U. S. 528, 538-539 (1955). This is even more true when one is talking about the Constitution.

No doubt you will argue that these rules are extra-legal and are of no effect. These rules of construction predate the Constitution, however, and were well-known to the authors of the Constitution. Although I have cited caselaw to support these rules of construction they exist in the common law and generally apply to the Constitution. This pdf (http://www.fas.org/sgp/crs/misc/97-589.pdf) is long, but discusses such well established rules at length, if you are interested.

Second, you are not merely suggesting a phrase or two in the Constitution is meaningless, but rather that most of the document -- such as nearly the entire Bill of Rights -- is meaningless. That is a particularly absurd position and hardly one that can be claimed to take the document seriously.

I've long argued that treaties with indigenous Americans contain those passages. The courts disagree with me on that, as well.

How endearing of you. :rolleyes:

And I don't see how that's relevant. What the law actually says and what the law was meant to say (Founders' position) and what the law is previously described to have said (SCOTUS position) have no necessary connection.

It is relevant that those who wrote the phrases "ex post facto law" and "habeas corpus" had clear and commonly understood meanings in mind when they used those phrases. They weren't inventing their own special code words that were meaningless. They were using phrases that were interpretable.

Given that they find meaning that isn't there, that's obviously untrue.

Again, you know better than the Founders and every Supreme Court Justice in the history of the Republic what the Constitution says. Yet, you can't actually profer meaning to it's provisions, but instead must declare the terms meaningless.


So then we are at odds, but at least my position results in legal application that is universally fair.

Your definition of fairness leaves much to be desired. If you take a contract that two people have slaved over and after the fact say that most of the provisions of that contract -- provisions intended to have meaning -- are meaningless, then your refusal to enforce that contract is far from fair.

Again, only if you assume that meaninglessness isn't acceptable content.

Again, that you must declare most of the document meaningless in order to maintain your position exposes why your approach is not a sound approach to Constitutional interpretation.

I don't see why. If a passage is literally meaningless, that should be obvious to any rational observer who reads it.

Here your hubris overflows. Are you actually saying that everyone who reads the Constitution and finds meaning in it, is necessarily "irrational"? That you appear to be the only rational observer?

Okay, here goes.

I agree with the majority. Involutary sevitude refers to servitude for which the servant did not volunteer. Unless the contract was signed under duress, contractual work clearly does not qualify as involuntary.

Harlan's mistake comes when he states, "A condition of enforced service, even for a limited period, in the private business of another, is a condition of involuntary servitude." That's not what involuntary means. Harlan is using involuntary as synonymous with unwilling, but that's not what the word means. Involuntary is a negation of voluntary, and voluntary service is service for which you volunteered. Whether you want to do it isn't relevant; whether you agreed to do it is what matters.

Harlan later makes a slippery slope argument that allowing contractual servitude of this sort could eventually lead to the reestablishment of slavery, which is absurd on two levels. First, Harlan already established that slavery consists of the ownership of one man by another, which these contracts do not do (even if they create similar outcomes, the ownership is never transferred). Second, slavery is explicitly prohibited by the thirteenth amendment, so it couldn't happen anyway.

Good for you. I agree that the majority is right.

The meat of the court's decision is that the statutory provision for punishment of contractually obligated deserters doesn't contradict the constitutional prohibition of involuntary servitude. I would accept that as obviously true, and I'm a bit surprised the court even heard the case.

I thought under your position every court decision would be obviously true. Granted that raises the question of why appellate courts are needed at all.

The justification the majority offered is extraneous. The court often seems to present evidence to make its decision compelling on some principled basis, and I have no idea why that's necessary. The law says what the law says. Whether people think the law should say that is irrelevant. That decision is for the legislative branch to make.

1. Saying it is extraneous doesn't deal with the substance, which I directly asked you to deal with.

2. Where from do you get this notion of the separation of powers that leaves the judiciary with so little role? Meethinks you are relying on extra-legal sources. ;)

Sort of. I wouldn't object to using other legal sources, just not extra-legal sources. If two laws about seemingly unrelated things, when taken together, necessarily required something else to be true, I would accept that conclusion as supported by law.

But your on the right track.

Yes. Undeniably.

Correct.

That might take some looking.

Why would it take some looking? According to you all laws should qualify.

You are openly admitting that laws aren't written the way you say they are.

Why would it take some looking? According to you all laws should qualify.

You are openly admitting that laws aren't written the way you say they are.
When you put it that way, you're right. All grammatically correct written statements are such that no two rational observers can disagree as to their meaning.

So what would be the purpose of citing one in particular, then? If you'd like me to select one at random, how about 1997 Wisconsin Act 171 (s. 293.50, Wisconsin Statutes)?

First, a basic principle of statutory interpretation is that courts should “give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.”
But what happens if you can't follow both of those rules at the same time?

Look again at the second amendment:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

In order to give effect to every clause and word of the amendment, we have to ignore the sentence structure that makes the opening clause irrelevant. Either the authors understood what they were saying, and thus meant the opening clause to be flavour rather than content, or they intended that clause be content, in which case they didn't understand what they were saying.

Your rules of interpretation are demonstrably inapplicable.
Second, you are not merely suggesting a phrase or two in the Constitution is meaningless, but rather that most of the document -- such as nearly the entire Bill of Rights -- is meaningless. That is a particularly absurd position and hardly one that can be claimed to take the document seriously.
This attack of yours is also without content, and this meaningless. You can't criticise my interpretation for rendering parts of the document meaningless without first showing that meaninglessness is unacceptable, and you haven't done that.
How endearing of you. :rolleyes:
I didn't write the treaties; I'm just being faithful to history.
It is relevant that those who wrote the phrases "ex post facto law" and "habeas corpus" had clear and commonly understood meanings in mind when they used those phrases. They weren't inventing their own special code words that were meaningless. They were using phrases that were interpretable.
If they'd intended meanings beyond the literal (and those phrases both have literal meanings), they should have either included definitions or pointed to sources containing them.

My application of ex post facto is the literal one.
Again, you know better than the Founders and every Supreme Court Justice in the history of the Republic what the Constitution says. Yet, you can't actually profer meaning to it's provisions, but instead must declare the terms meaningless.
Again, this would only be a stinging attack if the passages weren't actually meaningless.
Your definition of fairness leaves much to be desired. If you take a contract that two people have slaved over and after the fact say that most of the provisions of that contract -- provisions intended to have meaning -- are meaningless, then your refusal to enforce that contract is far from fair.
Their intent isn't knowable. We've been over this.

They agreed on a contract that had specific content. They're both well aware of the content of that contract (they slaved over it, after all). Interpreting the contract to meaning anything other than exactly what it says in unfair to both of them.

They worked hard on that wording; let that wording work for them. How do we know one of them didn't intend the contract to be meaningless?
Again, that you must declare most of the document meaningless in order to maintain your position exposes why your approach is not a sound approach to Constitutional interpretation.
Actually, it's far more sound than your approach. It just isn't complete, which seems to be the heart of your objection. You're unwilling to accept that there are questions the law simply does not answer - you want the law to be complete. I, however, would prefer the law were sound, and thus always correct. Since we can't have both (Gödel), we have to choose.

You apparently choose to discard soundness for completeness, even though doing so makes your legal system demonstrably absurd.
Here your hubris overflows. Are you actually saying that everyone who reads the Constitution and finds meaning in it, is necessarily "irrational"? That you appear to be the only rational observer?
Of course not. I allow that people who claim to find meaning in the constitution may well be doing so to further their own ends, without any concern for what the constitution actually says.

Once you know the constitution is likely to be interpreted broadly, it's perfectly reasonable behaviour to lie about what you think is means so as to produce an outcome that favours you.

My system of legal interpretation eliminates any benefits from people gaming the system.

I thought under your position every court decision would be obviously true. Granted that raises the question of why appellate courts are needed at all.
Every court decision should be obviously true. But judges are human, and do make mistakes. I would think, though, that appellate courts would only be necessary to correct errors or law, and those should be demonstrable with certainty in a short brief.

I think you'd see far fewer appeals heard under my system.
1. Saying it is extraneous doesn't deal with the substance, which I directly asked you to deal with.
The substance doesn't matter. Sure, fine, the court thought it was right and good that the government enforce these agreements because it produced better outcomes and it was just.

It doesn't matter what the outcome is; it matters whether the law is applied properly. In this case it was.

I could have written this decision in 200 words.
2. Where from do you get this notion of the separation of powers that leaves the judiciary with so little role? Meethinks you are relying on extra-legal sources. ;)
Where do you get the notion that that leaves the legislature with so little role? If the judiciary can create law from nothing, they're fulfilling a legislative role.

2. Where from do you get this notion of the separation of powers that leaves the judiciary with so little role? Meethinks you are relying on extra-legal sources. ;)

Where do you get the notion that that leaves the legislature with so little role? If the judiciary can create law from nothing, they're fulfilling a legislative role.

I raise a fundamental question about your approach and you dodge it with a frivilous question in response.

I don't, for the record, believe the judiciary can create law from nothing -- that is simply your false attempt to exaggerate my position.

Regardless, I can point to multiple sources for my view of the judiciary. First and foremost, the Constitution itself. Next, the explanation of the Constitution by its own authors known as The Federalist Papers. Finally, other sources of philosophy and history.

You, however, appear to be imposing your jaundiced view for sake of itself. That your view claims to take the Constitution at literal value, yet declares most of that value meaningless, only adds to your absurdity.

When you put it that way, you're right. All grammatically correct written statements are such that no two rational observers can disagree as to their meaning.

1. Funny how you didn't realize this was a necesssary result of your position until I pointed out it to you.

2. I love how anyone that diagrees with you must either be irrational or dishonest. There appears to be no room in your universe for you to be wrong or for anyone to honestly disagree with you.


So what would be the purpose of citing one in particular, then?

It wasn't my challenge. But your hestitation was enough to prove you lack the courage of your convictions.

Are you now contending that all laws are written so no two rational observers can disagree as to their meaning?

If you'd like me to select one at random, how about 1997 Wisconsin Act 171 (s. 293.50, Wisconsin Statutes)?

1. Don't expect me to believe you really selected this statute "at random." Perhaps you can share your selection criteria instead.

2. Although this statute (http://www.legis.state.wi.us/1997/data/acts/97Act171.pdf) (pdf) is a fine example of rather clear legislation, it is not true that it is without ambiguity. For example, the Wisconsin Department of Natural Resources was asked to interpret: "Does one candidate mine have to meet both the 10-year operations requirement and the 10-year closure requirement in order [for an applicant for a metallic mining permit] to qualify [for a mining permit]?"

But what happens if you can't follow both of those rules at the same time?

Look again at the second amendment:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

In order to give effect to every clause and word of the amendment, we have to ignore the sentence structure that makes the opening clause irrelevant. Either the authors understood what they were saying, and thus meant the opening clause to be flavour rather than content, or they intended that clause be content, in which case they didn't understand what they were saying.

Your rules of interpretation are demonstrably inapplicable.

1. A rule of interpretation that admits exceptions ("give effect, if possible," "avoiding, if it may be,") is not demonstrated to be inaaplicable to the entire Constitution because you can allege one exception. The rule is a rule of presumption. A reading that renders a clause meaningless is presumptively wrong. While there may nonetheless be clauses that are meaningless, the view that most of the clauses are meaningless is conclusively wrong.

2. I won't enter into a side debate about the meaning of the Second Amendment, but you are positing a false dichotomy. There is nothing that prevents the first and second parts of the Second Amendment from being read together as having meaning.

This attack of yours is also without content, and this meaningless. You can't criticise my interpretation for rendering parts of the document meaningless without first showing that meaninglessness is unacceptable, and you haven't done that.

1. I realize it doesn't bother you, but any rational observer may be taken aback by the fact that your position necessitates the conclusions that:
(1) most of the Constitution and almost all of the Bill of Rights is meaningless
(2) the Founders were wrong in their understanding of the Constitution they wrote
(3) essentially every Supreme Court Justice in the history of the republic has been irrational and/or an inveterate liar.

The absudity of these positions speaks for itself.

2. Meaninglessness is prima facie unacceptable when it comes to the Constitution -- particularly the fundamental rights of man incorporated in the Bill of Rights and the Fourteenth Amendment. The fact that you have no problem declaring the First Amendment, for example, meaningless is an insult to the hard-won rights of free speech and freedom of religion.

3. People do not ordinarily indulge in gibberish, especially when laying out a document as important as the Constitution. That your position presupposes that most language is gibberish is a flaw in your position. It turns reason on its head.

If they'd intended meanings beyond the literal (and those phrases both have literal meanings), they should have either included definitions or pointed to sources containing them.

My application of ex post facto is the literal one.

1. Your "application" of ex post facto is simply wrong and based in your ignorance. We've already established that.

2. Pray tell, what is the literal meaning of "habeas corpus" beyond "you have the body"? Or are you going to change your position and declare the phrase meaningless as well?

3. I'm curious: is a dictionary an extra-judicial source? If not, why not?



Actually, it's far more sound than your approach. It just isn't complete, which seems to be the heart of your objection. You're unwilling to accept that there are questions the law simply does not answer - you want the law to be complete. I, however, would prefer the law were sound, and thus always correct. Since we can't have both (Gödel), we have to choose.

You apparently choose to discard soundness for completeness, even though doing so makes your legal system demonstrably absurd.

Meh. You are projecting a view upon me which is wholly inaccurate. I don't expect the law to answer every question and I do expect the law to be sound.

How you come to the conclusion that the view that most law is meaningless equals the law being sound and always correct is beyond me, however.

Of course not. I allow that people who claim to find meaning in the constitution may well be doing so to further their own ends, without any concern for what the constitution actually says.

Once you know the constitution is likely to be interpreted broadly, it's perfectly reasonable behaviour to lie about what you think is means so as to produce an outcome that favours you.

My system of legal interpretation eliminates any benefits from people gaming the system.

How nice. Those that disagree with you and find meaning in the Constitution aren't necessarily irrational, they are just necessarily either irrational or lying. (And this group of liars or idiots includes not just me, but the Founders themselves and every Supreme Court Justice in the history of the Republic.)

Again, the hubris is astounding.

.............
My system of legal interpretation eliminates any benefits from people gaming the system.

Does anyone actually use your system?

1. Funny how you didn't realize this was a necesssary result of your position until I pointed out it to you.
It's a common position of mine. Somehow I'd managed to talk myself out of it in this thread.
2. I love how anyone that diagrees with you must either be irrational or dishonest. There appears to be no room in your universe for you to be wrong or for anyone to honestly disagree with you.
I can be wrong. But if I am wrong, then I'm demonstrably wrong, and you should be able to show exactly how I'm wrong.
Are you now contending that all laws are written so no two rational observers can disagree as to their meaning?
Yes. That's true of all statements.
1. Don't expect me to believe you really selected this statute "at random." Perhaps you can share your selection criteria instead.
It happens to be a statute with which I'm familiar from another endeavour. On the surface, it struck me as being unrelated to our discussion, so that made it effectively random (it's selection was not predictable).
2. Although this statute (http://www.legis.state.wi.us/1997/data/acts/97Act171.pdf) (pdf) is a fine example of rather clear legislation, it is not true that it is without ambiguity. For example, the Wisconsin Department of Natural Resources was asked to interpret: "Does one candidate mine have to meet both the 10-year operations requirement and the 10-year closure requirement in order [for an applicant for a metallic mining permit] to qualify [for a mining permit]?"
Just because one person misunderstands a law doesn't mean the law was ambiguous. There's nothing in the wording of the statute that would require those two example mines be the same mine.

Does anyone actually use your system?
Not that I've found.

Well, that's not true. No one uses this line of thinking in the law, no, but I understand it's quite common in computer programming (I am not a computer programmer).

Well, that's not true. No one uses this line of thinking in the law, no, but I understand it's quite common in computer programming (

That is because the rest of us, thankfully, have realized that humans are not computers, and any attempt to treat us as such is illogical and irrational.

1. A rule of interpretation that admits exceptions ("give effect, if possible," "avoiding, if it may be,") is not demonstrated to be inaaplicable to the entire Constitution because you can allege one exception. The rule is a rule of presumption. A reading that renders a clause meaningless is presumptively wrong. While there may nonetheless be clauses that are meaningless, the view that most of the clauses are meaningless is conclusively wrong.
Why? Why can some clauses be meaningless but most of them can't?

But more importantly, that I can't do both all of the time (as you concede) means I have to have some standard to determine which is more important, but the clause you quoted earlier doesn't help us. Since it says both "give effect, if possible" and "avoiding, if it may be", we can't tell with the second amendment whether we should assume the authors knew what they were saying or whether they intended that all parts of the amendment be relevant. They can't both be true, so we need to choose one. Which one? How do we decide?

I would think the assumption that the authors knew what they were saying is more important, because the rules of language are well known, whereas political documents (and all laws are political documents) routinely contain obfuscatory passages.
2. I won't enter into a side debate about the meaning of the Second Amendment, but you are positing a false dichotomy. There is nothing that prevents the first and second parts of the Second Amendment from being read together as having meaning.
Only if we assume the authors didn't understand what they were saying.
1. I realize it doesn't bother you, but any rational observer may be taken aback by the fact that your position necessitates the conclusions that:
(1) most of the Constitution and almost all of the Bill of Rights is meaningless
(2) the Founders were wrong in their understanding of the Constitution they wrote
(3) essentially every Supreme Court Justice in the history of the republic has been irrational and/or an inveterate liar.
1. I don't think I said that. You've been asserting it for some pages now, but I only claimed that parts of the constitution were meaningless. Not most of it.
2. I don't require that, either. See #3.
3. This one's correct. Nearly every Supreme Court Justice is the history of the republic has been either irrational or an inveterate liar. Well said. I would also say this of the founders, but their lies may well have served an important political purpose. Those lies got the constitution accepted.
The absudity of these positions speaks for itself.
Nothing speaks for itself except literal content. This has been my point all along.

And, strictly speaking, you're misusing the word absurd.
2. Meaninglessness is prima facie unacceptable when it comes to the Constitution -- particularly the fundamental rights of man incorporated in the Bill of Rights and the Fourteenth Amendment. The fact that you have no problem declaring the First Amendment, for example, meaningless is an insult to the hard-won rights of free speech and freedom of religion.
Is it possible to insult rights?

And again, I don't hold most of the amendments to be meaningless. I hold them to be less meaningful than you do, and parts of them are flatly irrelevant without more information (like the ninth amendment), but that doesn't make it meaningless. The ninth amendment clearly does protect any other unenumerated rights that exist. But since it doesn't assert that those rights do exist, it needs evidence of those rights to be relevant.

Have we even discussed the first amendment? I don't think we have.

And we've been over this before. Nothing is prima facie anything.
3. People do not ordinarily indulge in gibberish, especially when laying out a document as important as the Constitution. That your position presupposes that most language is gibberish is a flaw in your position. It turns reason on its head.
No, it applies reason in its purest form. You're afraid to apply the reason to strictly because it leads to conclusions you don't like. You're choosing your conclusions first and then tailoring your reason to accommodate them. That's lousy reasoning.
1. Your "application" of ex post facto is simply wrong and based in your ignorance. We've already established that.

2. Pray tell, what is the literal meaning of "habeas corpus" beyond "you have the body"? Or are you going to change your position and declare the phrase meaningless as well?
I'm not that good at Latin.

I can't imagine why the authors didn't bother defining these technical terms.
3. I'm curious: is a dictionary an extra-judicial source? If not, why not?
That's a good question. Since the law is written in a language, the rules of that language are inherent to the law (and thus the rules of the language are not an extra-legal source). But, the rules of language are enumerated differently by different texts (Webster vs. OED, for example), so it would have been helpful if the authors of the law had specified a particular set of enumerated rules by which to interpret the law.
Meh. You are projecting a view upon me which is wholly inaccurate. I don't expect the law to answer every question and I do expect the law to be sound.

How you come to the conclusion that the view that most law is meaningless equals the law being sound and always correct is beyond me, however.
Soundness requires the law be incapable of contradicting itself. Need I point to Riggs v. Palmer again?
How nice. Those that disagree with you and find meaning in the Constitution aren't necessarily irrational, they are just necessarily either irrational or lying. (And this group of liars or idiots includes not just me, but the Founders themselves and every Supreme Court Justice in the history of the Republic.)

Again, the hubris is astounding.
Astounding or not, it's a wholly reasonable position.

That is because the rest of us, thankfully, have realized that humans are not computers, and any attempt to treat us as such is illogical and irrational.
How about formal logic? If I'd used formal logic as my example rather than computer programming would you have been happier?

At least then your "illogical and irrational" objection would have been really silly.

How about formal logic? If I'd used formal logic as my example rather than computer programming would you have been happier?

At least then your "illogical and irrational" objection would have been really silly.

you calling your impractical, idiotic, and unusable legal system "logical" is, frankly, absurd.

Why? Why can some clauses be meaningless but most of them can't?

What part of a presumptive rule don't you understand? The default position is that a clause has meaning and any reading that finds meaning in every word and phrase is preferred over a reading that ignores words or renders them meaningless. This does not mean that words can never be without relevant meaning, but it means they should rarely ever be so.

But more importantly, that I can't do both all of the time (as you concede) means I have to have some standard to determine which is more important, but the clause you quoted earlier doesn't help us. Since it says both "give effect, if possible" and "avoiding, if it may be", we can't tell with the second amendment whether we should assume the authors knew what they were saying or whether they intended that all parts of the amendment be relevant. They can't both be true, so we need to choose one. Which one? How do we decide?.

You've created a false dichotomy. You've taken a solitary rule that reads as a whole and tried to break it into two parts that you claim are contradictory. This is nonsense. We assume that every word has meaning because we assume the authors knew what they were saying. They can and are "both" true.


I would think the assumption that the authors knew what they were saying is more important, because the rules of language are well known, whereas political documents (and all laws are political documents) routinely contain obfuscatory passages.

You've made this claim about political documents routinely having obfuscatory (and apparently meaningless) passages, but you've offered no evidence. To the contrary, this appears to contradict your view that every law is written so that no two rational observers could disagree as to its meaning.

Only if we assume the authors didn't understand what they were saying.

Um. No. I'm saying the entirety can be read to make sense. You are wrong in assuming a contradiction.

1. I don't think I said that. You've been asserting it for some pages now, but I only claimed that parts of the constitution were meaningless. Not most of it.

*sigh*

We could go through the Constitution clause by clause but that seems a waste of time. Every clause you have been asked about you have deemed meaningless. It is fair to infer that you consider most of the Constitution meaningless -- particularly the Bill of Rights.

2. I don't require that, either. See #3.
3. This one's correct. Nearly every Supreme Court Justice is the history of the republic has been either irrational or an inveterate liar. Well said. I would also say this of the founders, but their lies may well have served an important political purpose. Those lies got the constitution accepted.

Again, I'm simply astounded at your hubris.

The Founders lied about what the Constitution meant? Even amongst themselves?

You should perhaps read a bit of history about the men and women that have served as Supreme Court Justices before you condemn them all as liars and idiots. Your assertion is not only bizarrely wrong, but extremely insulting. People such as John Marshall, Oliver Wendell Holmes, and William O. Douglas were quite capable of being wrong -- even greviously wrong -- but they were neither liars nor irrational.



And again, I don't hold most of the amendments to be meaningless. I hold them to be less meaningful than you do, and parts of them are flatly irrelevant without more information (like the ninth amendment), but that doesn't make it meaningless. The ninth amendment clearly does protect any other unenumerated rights that exist. But since it doesn't assert that those rights do exist, it needs evidence of those rights to be relevant.

Fine. Lets go through some key phrases from the Bill of Rights and you can tell me either (1) what their literal meaning is or (2) that they are meaningless.

"establishment of religion"
"freedom of speech"
"secure ... against unreasonable searches and seizures"
"nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"
"due process of law"
"just compensation"
"speedy and public trial"
"impartial jury"
"excessive bail"
"cruel and unusual punishment"

Have we even discussed the first amendment? I don't think we have.

Remember my question about "establishment of religion"? You concluded the phrase was meaningless. But I'm giving you a second chance at it above.


No, it applies reason in its purest form. You're afraid to apply the reason to strictly because it leads to conclusions you don't like. You're choosing your conclusions first and then tailoring your reason to accommodate them. That's lousy reasoning.

Meh. You like to accuse me of lots of things, but you offer little evidence that they are true. I've spent many, many years studying law and the Constitution in particular, so yes I have formed conclusions about it. That doesn't mean I start with my conclusions and reason backwards. It merely means I've already been through the reasoning process more than once.

I'm not that good at Latin.

I can't imagine why the authors didn't bother defining these technical terms.

You don't need to know Latin because the words have well-established English meanings.

And that is why the authors didn't define the terms: THERE WAS NO NEED TO DEFINE THEM AS THEY ALL KNEW WHAT THEY MEANT!

That's a good question. Since the law is written in a language, the rules of that language are inherent to the law (and thus the rules of the language are not an extra-legal source). But, the rules of language are enumerated differently by different texts (Webster vs. OED, for example), so it would have been helpful if the authors of the law had specified a particular set of enumerated rules by which to interpret the law.

Finally, a breath of reasonableness from you. But words like habeas corpus and ex post facto have dictionary definitions that do not agree with your "literal" interpretation.

And I suggest a law dictionary, such as the authoritative Black's Law Dictionary (http://en.wikipedia.org/wiki/Black's_Law_Dictionary), is best for defining the rules of language inherent to the law.

Soundness requires the law be incapable of contradicting itself. Need I point to Riggs v. Palmer again?

You act as if statutes are incapable of contradiction, but that is not so.

Astounding or not, it's a wholly reasonable position.

Apparently your definition of "wholly reasonable" is as erroneous as your definition of constitutional phrases.

you calling your impractical, idiotic, and unusable legal system "logical" is, frankly, absurd.
It's only unusable by people who are unwilling to use logic to find answers to questions, or people who want their legal outcomes to mirror some apparently indescribable concept of justice.

Calling a logical system logical is demonstrably not absurd.

What part of a presumptive rule don't you understand? The default position is that a clause has meaning and any reading that finds meaning in every word and phrase is preferred over a reading that ignores words or renders them meaningless. This does not mean that words can never be without relevant meaning, but it means they should rarely ever be so.

You've created a false dichotomy. You've taken a solitary rule that reads as a whole and tried to break it into two parts that you claim are contradictory. This is nonsense. We assume that every word has meaning because we assume the authors knew what they were saying. They can and are "both" true.
The wording of the second amendment, in particular, precludes that from being true. The structure of the sentence is such that the opening clause is an aside; it doesn't impact the meaning of the sentence at all. If we assume the authors knew what they were saying, we must ignore the remark about militias.

But, then we're ignoring content.

Your application of the rule only works if it's not possible for sentences to be structured in the way that the second amendment is. Unfortunately, the second amendment exists, so the rule can't be applied as you describe.
You've made this claim about political documents routinely having obfuscatory (and apparently meaningless) passages, but you've offered no evidence.
Have you never read campaign literature?
To the contrary, this appears to contradict your view that every law is written so that no two rational observers could disagree as to its meaning.
I don't see how. No two rational observers can disagree as the the meaning of any remark. Many remarks are written to deceive, inveigle, and obfuscate. As such, the writers of the obfuscatory remarks must expect most readers not to be rational.

And they're right. Most people are not rational.
Um. No. I'm saying the entirety can be read to make sense. You are wrong in assuming a contradiction.
I don't need to assume it. I've shown it above.
*sigh*

We could go through the Constitution clause by clause but that seems a waste of time. Every clause you have been asked about you have deemed meaningless. It is fair to infer that you consider most of the Constitution meaningless -- particularly the Bill of Rights.
It's never fair to infer anything (induction is irrational), but I'll just concede your point about the entire Bill of Rights being meaningless. I don't think it matters to my position one way or the other once we accept that they might be meaningless.
Again, I'm simply astounded at your hubris.

The Founders lied about what the Constitution meant? Even amongst themselves?
Why do you presuppose they didn't?

Your entire position is based on this trust in the good intentions of the founders, even when doing so requires you ignore the literal meanings of words and grammar.
You should perhaps read a bit of history about the men and women that have served as Supreme Court Justices before you condemn them all as liars and idiots. Your assertion is not only bizarrely wrong, but extremely insulting. People such as John Marshall, Oliver Wendell Holmes, and William O. Douglas were quite capable of being wrong -- even greviously wrong -- but they were neither liars nor irrational.
Then why are their rulings predominantly baseless?
Fine. Lets go through some key phrases from the Bill of Rights and you can tell me either (1) what their literal meaning is or (2) that they are meaningless.
As I said above, I'm just going to concede they are meaningless to keep this moving forward.

If they are meaningless, the judicial system needs to be able to interpret them as such. But according to you, the courts can't do that because they're required to give meaning to ever word, even when they are demonstrably meaningless.

What if they are meaningless? Any one of them? Your entire system falls apart and becomes demonstrably irrational.

My system, however, is fault-tolerant.
Meh. You like to accuse me of lots of things, but you offer little evidence that they are true. I've spent many, many years studying law and the Constitution in particular, so yes I have formed conclusions about it. That doesn't mean I start with my conclusions and reason backwards. It merely means I've already been through the reasoning process more than once.
I wonder then why you're so unable to describe that reasoning process without leaving out a bunch of presuppositions.
You don't need to know Latin because the words have well-established English meanings.

And that is why the authors didn't define the terms: THERE WAS NO NEED TO DEFINE THEM AS THEY ALL KNEW WHAT THEY MEANT!
They may have, but they shouldn't have assumed that future citizens all would.
Finally, a breath of reasonableness from you. But words like habeas corpus and ex post facto have dictionary definitions that do not agree with your "literal" interpretation.

And I suggest a law dictionary, such as the authoritative Black's Law Dictionary (http://en.wikipedia.org/wiki/Black's_Law_Dictionary), is best for defining the rules of language inherent to the law.
Thanks.

Remember, though, I'll only accept citations that are older than the document I'm interpreting. The meanings of the words can't change over time for the law to remain constitent.
You act as if statutes are incapable of contradiction, but that is not so.
There was no contradiction in Riggs v. Palmer until after the ruling.

But even so, if there are contradictions in statutes, there needs to be a mechanism to resolve those. If no such mechanism exists in law, the statutes need to be considered meaningless.
Apparently your definition of "wholly reasonable" is as erroneous as your definition of constitutional phrases.
You apparently want the word reasonable to have nothing to do with reason.

Most people are unreasonable.

2. Where from do you get this notion of the separation of powers that leaves the judiciary with so little role? Meethinks you are relying on extra-legal sources. ;)

I raise a fundamental question about your approach and you dodge it with a frivilous question in response.

I don't, for the record, believe the judiciary can create law from nothing -- that is simply your false attempt to exaggerate my position.

Regardless, I can point to multiple sources for my view of the judiciary. First and foremost, the Constitution itself. Next, the explanation of the Constitution by its own authors known as The Federalist Papers. Finally, other sources of philosophy and history.

You, however, appear to be imposing your jaundiced view for sake of itself. That your view claims to take the Constitution at literal value, yet declares most of that value meaningless, only adds to your absurdity.

I really wish you would adddress this point, Llewdor, as it is key to this debate.

Inherent in your view is an opinion about the "proper" role of the legislature and the judiciary. Yet you offer no justification for this opinion and appear to be avoiding even discussing it.

The wording of the second amendment, in particular, precludes that from being true. The structure of the sentence is such that the opening clause is an aside; it doesn't impact the meaning of the sentence at all. If we assume the authors knew what they were saying, we must ignore the remark about militias.

But, then we're ignoring content.

Your application of the rule only works if it's not possible for sentences to be structured in the way that the second amendment is. Unfortunately, the second amendment exists, so the rule can't be applied as you describe.

You appear to be ignoring what I say and just repeating the same statements as a mantra.

1. You are fundamentally wrong about the Second Amendment. It can be read as a whole without rejecting any part of it as meaningless. You should try reading United States v. Miller (http://laws.findlaw.com/us/307/174.html), 307 U.S. 174 (1939), and its progeny.

2. Even if you were correct about the Second Amendment, that doesn't "disprove" the rule. As I explained, the rule is one of presumption. It is not an absolute, but a default position that can be overcome if necessary.

3. One of the many fundamental problems with your view is that it turns statutory construction on its head. Rather than strive to find meaning in the actions of the legislative branch, it simply assumes meaningless unecessarily.

Have you never read campaign literature?

Are you unable to grasp the obvious and critical differences between campaign literature and law?


It's never fair to infer anything (induction is irrational), but I'll just concede your point about the entire Bill of Rights being meaningless. I don't think it matters to my position one way or the other once we accept that they might be meaningless.


I've never denied it is theoretically possible to find a stray provision of the Bill of Rights to be without meaning.

But it is a simple fact that the Bill of Rights is not meaningless merely because it fails to satisfy your cramped and unrealistic approach to interpretation.

That your approach to construction results in the entire Bill of Rights being meaningless is not merely an unacceptable outcome, but is evidence of a flaw in the approach itself.

If they are meaningless, the judicial system needs to be able to interpret them as such. But according to you, the courts can't do that because they're required to give meaning to ever word, even when they are demonstrably meaningless.

No. That is not even close to what I have said. I have said that every word is presumed to have meaning but that does not preclude a finding that a word is meaningless if that is truly demonstrated to be the only rational result.

What if they are meaningless? Any one of them? Your entire system falls apart and becomes demonstrably irrational.

My system, however, is fault-tolerant.

As I've explained several times now, my view does not fall appart if a single word is demonstrated to be meaningless. To the contrary, it accepts that this might be a rare exception.

Your view makes sweeping generalizations that everything that doesn't have an obvious and inarguable "literal" meaning in and of itself is without value. That is a false and unnecessary conclusion.

Moreover, your view trips over the problem of dictionaries and other extra-judicial sources of meaning and grammar.

I wonder then why you're so unable to describe that reasoning process without leaving out a bunch of presuppositions.

The pot calls the kettle.

Remember, though, I'll only accept citations that are older than the document I'm interpreting.

Actually with the example of ex post facto, we have seen that even definitive citations that are older than the document itslef doesn't satisfy you if those definitions prove inconvenient to your presuppositions.

[QUOTE=Llewdor;13344418The meanings of the words can't change over time for the law to remain constitent.[/QUOTE]

To quote Justice Oliver Wendell Holmes, Jr.: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."

You deny reality because it does produce your desired outcome of consistency.

I really wish you would adddress this point, Llewdor, as it is key to this debate.
Okay.
2. Where from do you get this notion of the separation of powers that leaves the judiciary with so little role? Meethinks you are relying on extra-legal sources.
To satisfy fairness. If the judiciary has the role you describe, the law becomes necessarily unpredictable. The present meaning of the law becomes unknowable, to everyone, because we can't know what any part of the law says until the judiciary tells us. Since they (under your system) can interpret the law in ways that are not literal, we cannot know in advance what their judgements will be (or even what judgements are likely).
I don't, for the record, believe the judiciary can create law from nothing -- that is simply your false attempt to exaggerate my position.
You don't think the judiciary is creating the law from nothing because you think it's creating the law from extra-legal sources and overarching principles. My point is that within the law, those ARE nothing. They don't exist within the law, so from the perspective of the law the judgements are being created from nothing.

You appear to be ignoring what I say and just repeating the same statements as a mantra.

1. You are fundamentally wrong about the Second Amendment. It can be read as a whole without rejecting any part of it as meaningless. You should try reading United States v. Miller (http://laws.findlaw.com/us/307/174.html), 307 U.S. 174 (1939), and its progeny.
It cannot. Only by ignoring the grammar of the amendment can the opening clause be said to modify the closing clause. It's not even that complex a sentence.

And your chosen decision gets it wrong right at the beginning:

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Why? There's no basis for that at all. Interpreted as written, you can at least be sure you're adhering to the stated and enshrined in law intent of the authors (after all, we're supposed to assume they knew what they were saying).
2. Even if you were correct about the Second Amendment, that doesn't "disprove" the rule. As I explained, the rule is one of presumption. It is not an absolute, but a default position that can be overcome if necessary.
And as I pointed out, the second amendment makes clear the problem with your terms of interpretation. If we cannot satisfy both halves of the guideline, which one do we follow?
3. One of the many fundamental problems with your view is that it turns statutory construction on its head. Rather than strive to find meaning in the actions of the legislative branch, it simply assumes meaningless unecessarily.
It never assumes meaninglessness. It simply reads the statutes as written.

There's no need to "strive to find meaning" - the meaning is either in the text or it isn't, and anyone who understands the language in which the text is written can see it.
Are you unable to grasp the obvious and critical differences between campaign literature and law?
This tendency to describe distinctions as "obvious" but then fail to point them out is becoming common... and tiresome.

Since they're both written by politicians, and politicians have a primary interest in currying public favour, both documents are written (or should be, in the authors are rational) to acheive that end.

I don't see a relavent difference. Are you asserting that laws are written only with the best intentions of good governance in mind?
I've never denied it is theoretically possible to find a stray provision of the Bill of Rights to be without meaning.
Good.
But it is a simple fact that the Bill of Rights is not meaningless merely because it fails to satisfy your cramped and unrealistic approach to interpretation.
Also true. But what you've skipped is the explanation why most of the Bill of Rights CAN'T be without meaning. You've accepted that parts of it might be, so we're no longer finding meaning where there isn't any. Given that, how do you know it isn't mostly meaningless?
That your approach to construction results in the entire Bill of Rights being meaningless is not merely an unacceptable outcome, but is evidence of a flaw in the approach itself.
Why? Why can't the Bill of Rights be meaningless? On what is this assertion based?
No. That is not even close to what I have said. I have said that every word is presumed to have meaning but that does not preclude a finding that a word is meaningless if that is truly demonstrated to be the only rational result.
And yet, when I point out meaningless sections you object and insist they can't all be meaningless.
As I've explained several times now, my view does not fall appart if a single word is demonstrated to be meaningless. To the contrary, it accepts that this might be a rare exception.
Why does it need to be a rare exception?

I've asked this three different ways, now. Hopefully one of them will get your attention. Once you're willing to accept that parts of the constitution might be meaningless, what's stopping you from finding most of it meaningless if it happens to be?

Your insistence that it isn't all meaningless seems based primarily on your stomping your feet and shouting "It isn't!"
Your view makes sweeping generalizations that everything that doesn't have an obvious and inarguable "literal" meaning in and of itself is without value. That is a false and unnecessary conclusion.

Moreover, your view trips over the problem of dictionaries and other extra-judicial sources of meaning and grammar.
I've accepted the dictionary problem and pointed out that diligent legislators could avoid it by identifying a preferred reference guide.

But I'm right about the value of passages that lack literal meaning. If the law's meaning can't be known before the courts decide what it says, it's all retrospective.

Retrospective law is bad law, because it penalises or rewards people based on criteria which didn't exist until after their judged actions are complete.
The pot calls the kettle.
My hypocrisy does not invalidate my statement. Hypocrisy never does.
Actually with the example of ex post facto, we have seen that even definitive citations that are older than the document itslef doesn't satisfy you if those definitions prove inconvenient to your presuppositions.
I can accept that ex post facto doesn't mean what I thought it meant. I had thought it actually meant something relevant to how the law works, when if fact it's completely arbitrary. Thanks for pointing that out.

And before you object to that, we've already been over it. There is no difference in kind between ex post facto law and other retrospective law.
To quote Justice Oliver Wendell Holmes, Jr.: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."
Did Holmes, by any chance, write that in a judgement where he was trying to justify his broad construction of something or other?

As it happens, I agree with Holmes on that one. But, the time and circumstances in which the words in statutes were used were the time and circumstances in which the statutes were written. Holmes's remarks do not support changing the meanings of words in law after the laws have been written.
You deny reality because it does produce your desired outcome of consistency.
I do not, but you deny language and meaning for the same reason.

To satisfy fairness. If the judiciary has the role you describe, the law becomes necessarily unpredictable. The present meaning of the law becomes unknowable, to everyone, because we can't know what any part of the law says until the judiciary tells us. Since they (under your system) can interpret the law in ways that are not literal, we cannot know in advance what their judgements will be (or even what judgements are likely).

1. It is most curious that you equate predictability with fairness, but ignore and even disdain the role of judicial precedent. Precedent greatly increases predictability and its absence greatly increases unpredictability.

2. It is far from a given that predictability equals fairness or that fairness is the most important goal of the judicial system. You have to justify these premises.

3. It is simply not true that a lack of strict construction (or whatever your view may be called) equals a complete lack of predictability. Nor is it true that your view guarantees 100% predictability. There are levels of predictability. Knowing the law, including case law, makes us able to determine what judgements are likely--especially in the vast majority of cases that do not involve cutting-edge questions.

You don't think the judiciary is creating the law from nothing because you think it's creating the law from extra-legal sources and overarching principles. My point is that within the law, those ARE nothing. They don't exist within the law, so from the perspective of the law the judgements are being created from nothing.

Bah. You are making value judgments about "the law" versus "extra-legal" that are not self-justifying. Moreover, you irrational exclude the common law from "the law."

1. It is most curious that you equate predictability with fairness, but ignore and even disdain the role of judicial precedent. Precedent greatly increases predictability and its absence greatly increases unpredictability.

2. It is far from a given that predictability equals fairness or that fairness is the most important goal of the judicial system. You have to justify these premises.
The chance that a citizen can, after having learned the law, be presented with a court decision he could not have reasonably predicted, should approach zero. Lesser levels of predictability create unfairness.

Will you accept that fairness is something to which the legal system should aspire? If not, we're probably done, but if so then we can discuss what methods of legal interpretation most promote fairness.
3. It is simply not true that a lack of strict construction (or whatever your view may be called) equals a complete lack of predictability. Nor is it true that your view guarantees 100% predictability. There are levels of predictability. Knowing the law, including case law, makes us able to determine what judgements are likely--especially in the vast majority of cases that do not involve cutting-edge questions.
Without case law, there's a lot less to know. This increases the chances of ordinary citizens to know the whole of the law as it pertains to them.

Plus, precedent grants the judiciary tremendous power over the law, as their judgements then become law themselves, even if their judgements are in error. Since erroneous judgements can be used as precedent just as easily as correct interpretations, this, over time, creates law the deviates further and further from the text of the statutes.
Bah. You are making value judgments about "the law" versus "extra-legal" that are not self-justifying. Moreover, you irrational exclude the common law from "the law."
I don't think the common law is knowable, thus it violates fairness.

My judgements may not be self-justifying, but they are internally consistent, so they cannot be dismissed out of hand.

It cannot. Only by ignoring the grammar of the amendment can the opening clause be said to modify the closing clause. It's not even that complex a sentence.

It can and your saying otherwise doesn't change that. The opening clause doesn't have to modify the closing clause grammatically for the opening clause to add meaning to the sentence.

Your insistence that only your reading of the Second Amendment can possibly be right is amusing, but hardly evidence of anything relevant to this discussion.

And your chosen decision gets it wrong right at the beginning:

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Why? There's no basis for that at all. Interpreted as written, you can at least be sure you're adhering to the stated and enshrined in law intent of the authors (after all, we're supposed to assume they knew what they were saying).

1. It's not my "chosen opinion," but rather the seminal case on the subject by the U.S. Supreme Court.

2. I know you think your personal reading of the Second Amendment (or any other text) is superior to all others, including those of scores of Supreme Court Justices, but you'll have to do better than merely state you are right.

3. The basis for that sentence is made very clear in the opinion and flows directly from the language of the Second Amendment.

4. Funny. I thought the intent of the authors was unknowable and irrelevant.

And as I pointed out, the second amendment makes clear the problem with your terms of interpretation. If we cannot satisfy both halves of the guideline, which one do we follow?

For the umpteenth time, even if we take it as given that the Second Amendment defies my presumptive rule that doesn't in any way make the rule irrational or wrong. It is a presumptive rule and the presumption can be rebutted in individual cases.

And again, there are not two conflicting halves to the rule, but one unified whole.

It never assumes meaninglessness. It simply reads the statutes as written.

There's no need to "strive to find meaning" - the meaning is either in the text or it isn't, and anyone who understands the language in which the text is written can see it.

Bullshit. You conclude that any text that doesn't satisfy your preconceived notions of clarity is necessarily meaningless. Given a choice between giving a word or phrase its historical meaning and rendering it meaningless, you have been shown to prefer the latter.

How you can claim that "the law" is supposed to be supreme and the legislature all-powerful while at the same time writing off almost all law as meaningless is rather baffling.

Since they're both written by politicians, and politicians have a primary interest in currying public favour, both documents are written (or should be, in the authors are rational) to acheive that end.

I don't see a relavent difference. Are you asserting that laws are written only with the best intentions of good governance in mind?

Let's see, what some of the obvious and critical differences between laws (particularly the Constitution) and campaign literature?

One represents the view of the majority, even a supermajority, of the legislative body while the other represents the view of a single member or party.

One actually governs human interactions.

Etc, etc, etc.

And why, if as you assert, legislative law is no more well intended or meaningful than campaign literature, why should we so slavishly adhere to such laws literal meaning?


Also true. But what you've skipped is the explanation why most of the Bill of Rights CAN'T be without meaning. You've accepted that parts of it might be, so we're no longer finding meaning where there isn't any. Given that, how do you know it isn't mostly meaningless?

Why? Why can't the Bill of Rights be meaningless? On what is this assertion based?

I'm not advocating finding meaning where there isn't any. I'm saying that if there is a rational and/or historical meaning to a word or phrase, then that word or phrase is not meaningless.

Moreover, in talking about the presumption of meaningfulness, I am talking about a rule with both rational and historical bona fides. If we are going to take a text seriously and treat it as important, it makes basic sense to assume that it says something unless we simply cannot read it to make sense. And, as the struggles of our Republic have taught us, laws (and especially the Consitution) do matter and do make a difference.

In the case of the Bill of Rights, there are at least two relevant concerns. One is the fact that its provisions are not, as a matter of reason and history, meaningless -- so a view that calls them meaningless is suspect. Second, is that it is not desirable that the Bill of Rights be meaningless. If we have to choose between an approach that calls separation of Church and State, freedom of speech, etc., meaningless and an approach that gives some measure of protection to our freedoms, we would prefer the latter.

And yet, when I point out meaningless sections you object and insist they can't all be meaningless.

Why does it need to be a rare exception?

There is a difference -- a rather wide and dare I say again "obvious" difference -- between accepting that a word or phrase in the Bill of Rights may be without meaning or significance and saying that the entire thing is meaningless. If nothing else, there is a value judgment in saying that your pursuit of "consistency" is more important than the freedoms that the Bill of Rights seeks to protect.

Moreover, with the disputed exception of the Second Amendment aside you haven't "point[ed] out" meaningless sections of the Bill of Rights. Rather, you have presupposed the meaninglessness of the Bill of Rights simply because a literal meaning of its phrases is not obvious to your sensibilities.

I've asked this three different ways, now. Hopefully one of them will get your attention. Once you're willing to accept that parts of the constitution might be meaningless, what's stopping you from finding most of it meaningless if it happens to be?

Hopefully, I've now more than adequately answered this to your satisfaction. I'll repeat that (1) it isn't meaningless because it doesn't happen to be meaningless -- interpreting a meaningful phrase as meaningless is necessarily as bad or worse than reading an interpretation into a phrase that isn't there and (2) as a value choice, I prefer a judicial system where the Bill of Rights is meaningful to any judicial system where it is not.

Your insistence that it isn't all meaningless seems based primarily on your stomping your feet and shouting "It isn't!"

Sure. If you ignore history, the Supreme Court for 200+ years, basic reason, the writings of the Founders, the value of the words themselves, etc., then I'm just stomping my feet. Pray tell, what is the basis for your judgment that it is all meaningless, hmmm?

But I'm right about the value of passages that lack literal meaning. If the law's meaning can't be known before the courts decide what it says, it's all retrospective.

Retrospective law is bad law, because it penalises or rewards people based on criteria which didn't exist until after their judged actions are complete.

Whether you will admit it or not, you are making a value judgment here that avoiding "retrospective law" is more important than, for example, the rights protected by the Constitution. (Not to mention other advantages of an actual, empowered judiciary).

Nor are you right in assuming that the law must either have an obvious, undisputable literal meaning or it "can't be known" in advance.

I can accept that ex post facto doesn't mean what I thought it meant. I had thought it actually meant something relevant to how the law works, when if fact it's completely arbitrary. Thanks for pointing that out.

And before you object to that, we've already been over it. There is no difference in kind between ex post facto law and other retrospective law.

Just because the true meaning of ex post facto doesn't follow your prejudice against retrospective laws, doesn't mean that it is "completely arbitrary" or doesn't "actually mean something." The prohibition against ex post facto laws (1) has a well-settled historical meaning and (2) serves as an important protection of liberties.

Did Holmes, by any chance, write that in a judgement where he was trying to justify his broad construction of something or other?

No. Not IIRC.

As it happens, I agree with Holmes on that one. But, the time and circumstances in which the words in statutes were used were the time and circumstances in which the statutes were written. Holmes's remarks do not support changing the meanings of words in law after the laws have been written.

And yet you would refuse evidence of the "time and circumstances in which [a] statute[]" was written as "extra-legal" sources. If words vary based on time and circumstance, then we must look to more than just the "literal" meaning of the words to understand them properly.

I do not, but you deny language and meaning for the same reason.

I have yet to deny language or meaning.

But I have another case for you -- one that may find thought-provoking: Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co. (http://www.west.net/~smith/PGE_v_Drayage.htm), 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641 (1968).

Pacific Gas is a California Supreme Court decision that derides the "exclusion of testimony that might contradict the linguistic background of the judge [because it] reflects a judicial belief in the possibility of perfect verbal expression. . . . This belief is a remnant of a primitive faith in the inherent potency and inherent meaning of words. "

I'm curious as to what you make of it. ;)

The chance that a citizen can, after having learned the law, be presented with a court decision he could not have reasonably predicted, should approach zero. Lesser levels of predictability create unfairness.

I agree that reasonable predictability is a worthwhile goal. But it is not an absolute. Nor is it true that broad construction of the Consitution (or other laws) makes the law completely unpredictable.

I would argue that the system of precedent increases, rather than decreases predictability. How can the system be predictable if every case is decided tabula rasa?

Will you accept that fairness is something to which the legal system should aspire? If not, we're probably done, but if so then we can discuss what methods of legal interpretation most promote fairness.

Sure fairness is a goal of the legal system, but it is far from the only goal.

We should promote fairness, but that does not mean that we sacrifice all other interests to do so.

And, again, I don't necessarily agree with your assumptions that constancy is fairness or that your version of strict construction acheives greater fairness than other approaches to the law.

Without case law, there's a lot less to know. This increases the chances of ordinary citizens to know the whole of the law as it pertains to them.

The common law is far from unknowable. To the contrary, the common law is based on the history of our common experiences. Most of its precepts are common sense or ideas well ingrained in our system.

Nor is it true that less law necessarily means more certainty. One could well argue that having more law covers more circumstances and leaves less situations in limbo.

Plus, precedent grants the judiciary tremendous power over the law, as their judgements then become law themselves, even if their judgements are in error. Since erroneous judgements can be used as precedent just as easily as correct interpretations, this, over time, creates law the deviates further and further from the text of the statutes.

First, precedent is not an absolute. Like a rule of presumption, it can be overruled when necessary. But the presumption should be that if a court has already decided that X applies in situation Y, that the court will apply X to all situation Ys. This promotes the certainty and fairness you seek.

Secondly, there are checks and balances in our system. The judiciary does have significant power over the law -- they are supposed to be an equal branch of our government. But if the law "deviates" from what the legislature intends or desires, the legislature can always correct the law by statute.

I don't think the common law is knowable, thus it violates fairness.

1. The common law is knowable, it just isn't always simple.

2. Does knowability equal predictability which equals fairness, or are those somewhat differing values?

My judgements may not be self-justifying, but they are internally consistent, so they cannot be dismissed out of hand.

You accuse me of making unjustified assumptions, but don't bother to justify your own assumptions.

Internal consistency is not the same as rightness.

I haven't just dismissed your entire view "out of hand." I think I've given it much discussion here -- probably to the agony of other members of this forum. Nonetheless, I do think you are wrong.

It can and your saying otherwise doesn't change that. The opening clause doesn't have to modify the closing clause grammatically for the opening clause to add meaning to the sentence.
That's not how grammar works.

But assuming it does (and it doesn't, I'm not conceding that), what meaning do you think the clause adds? And yes, I will likely respond with a different but equally well supported by the text interpretation and ask you to explain why one is better than the other.
I know you think your personal reading of the Second Amendment (or any other text) is superior to all others, including those of scores of Supreme Court Justices, but you'll have to do better than merely state you are right.
I've explained why I'm right. I'm supported by the grammatical structure of the amendment.
Funny. I thought the intent of the authors was unknowable and irrelevant.
It is unknowable, and thus irrelevant. That's why I didn't refer to their actual intent. I referred to their intent "as stated and enshirned in law". I've said all along we can know what the literal content of the law is.

For the umpteenth time, even if we take it as given that the Second Amendment defies my presumptive rule that doesn't in any way make the rule irrational or wrong. It is a presumptive rule and the presumption can be rebutted in individual cases.
On what basis? The rule was a compound sentence based around a conjunction: "and". Since we cannot, in this case, satisfy both clauses in the rule, which one is more important? That's all I'm asking. On what basis do you grant meaning to the opening clause of the amendment contrary to the grammar of that amendment?
And again, there are not two conflicting halves to the rule, but one unified whole.
Let's look at the rule (quoted by you) again:

“give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.”

In the case of the second amendment, it is not possible to give effect to every clause and word while also avoiding any construction which implies that the legislature was ignorant of the meaning of the language it employed.

If we start with the second part of the rule, and avoid any construction which implies the legislature was ignorant of the meaning of the language it employed, then it isn't possible to give effect to every clause and word. That solves the problem, and renders the second rule supreme.

But, if we do it the other way around and give effect to every word and clause, then any construction which implies that the legislature was ignorant of the meaning of the language it employed may not be, thus rendering the first rule supreme.

Which is it? How do we decide?

This is normally where someone tells me I'm "overreading" something. I still don't know what that means.
Bullshit. You conclude that any text that doesn't satisfy your preconceived notions of clarity is necessarily meaningless. Given a choice between giving a word or phrase its historical meaning and rendering it meaningless, you have been shown to prefer the latter.
I'd rather go with a predefined notion of clarity, but the constitution doesn't give us one.
How you can claim that "the law" is supposed to be supreme and the legislature all-powerful while at the same time writing off almost all law as meaningless is rather baffling.
Because all law need not be meaningless. "The law", as you put it, is the system that governs us. What the actual content of that system is doesn't matter as long as it's clear and consistent.
And why, if as you assert, legislative law is no more well intended or meaningful than campaign literature, why should we so slavishly adhere to such laws literal meaning?
Because it's knowable, and because it "represents the view of the majority, even a supermajority, of the legislative body".
I'm not advocating finding meaning where there isn't any. I'm saying that if there is a rational and/or historical meaning to a word or phrase, then that word or phrase is not meaningless.
I'm not advocating ignoring meaning where there is some. I think the second amendment, for example, has a clear meaning.

Definitions outside the law, as I've conceded, are probably necessary, and the question as to which contemporary source to use to find them is a troublesome one. But reason does not create meaning where it does not exist, even if one thinks it should exist, or would rather it did.

If a fluent English speaker with no knowledge of American history read the constitution (ideally someone who had never heard of America and had no interest in the document), what would he think it said? That's what the constitution says.
Moreover, in talking about the presumption of meaningfulness, I am talking about a rule with both rational and historical bona fides. If we are going to take a text seriously and treat it as important, it makes basic sense to assume that it says something unless we simply cannot read it to make sense.
That's where you abandon reason, despite appealing to it in this very passage.

It is never reasonable to hold assumptions to be true. You shouldn't start with any assumptions when reading a document this important, because your assumptions can (and likely will) influence your interpretation. Confirmation bias is real.
In the case of the Bill of Rights, there are at least two relevant concerns. One is the fact that its provisions are not, as a matter of reason and history, meaningless -- so a view that calls them meaningless is suspect.
I don't even know what you mean now by "as a matter of reason and history". I'm the one using reason to interpret the constitution. You're using trust in the founders and the judiciary, and some as yet undefined sense of what's right and valuable.
Second, is that it is not desirable that the Bill of Rights be meaningless.
I would agree, but I don't see how that's relevant. If it's meaningless then it's meaningless, and there's nothing we can do about it.

Meaninglessness exists objectively. Whether we like it or not.
If we have to choose between an approach that calls separation of Church and State, freedom of speech, etc., meaningless and an approach that gives some measure of protection to our freedoms, we would prefer the latter.
All else being equal, sure. But all else isn't equal.

First, you're abandoning fairness by allowing the judiciary to create meaning in law after the fact. And second, you're actually presupposing meaning in the constitution here. You're choosing an approach because it gives some measure of protection to your freedoms, but that protection (and those freedoms) are granted by the constitution. Your argument is circular.
There is a difference -- a rather wide and dare I say again "obvious" difference -- between accepting that a word or phrase in the Bill of Rights may be without meaning or significance and saying that the entire thing is meaningless.
Keep in mind, I'm not asserting that the entire document is meaningless. I'm asserting that it might be meaningless, and your unwillingness to allow for the possibility prevents you from reading and interpreting it impartially.
If nothing else, there is a value judgment in saying that your pursuit of "consistency" is more important than the freedoms that the Bill of Rights seeks to protect.
Consistency is real. The freedoms only are if the Bill of Rights is so interpreted.
Whether you will admit it or not, you are making a value judgment here that avoiding "retrospective law" is more important than, for example, the rights protected by the Constitution.
And I've been explicit about it. I'm serving fairness.

You have not been equally explicit. What do you hope to achieve by making the law unfair?
(Not to mention other advantages of an actual, empowered judiciary).
What are those, by the way? I can't think of any.
Nor are you right in assuming that the law must either have an obvious, undisputable literal meaning or it "can't be known" in advance.
Yes I am. That's how knowledge works. Knowledge requires certainty.

And certainty is possible. At the very least, it is possible to know with certainty the truth value of some things relative to the truth value of other things.
Just because the true meaning of ex post facto doesn't follow your prejudice against retrospective laws, doesn't mean that it is "completely arbitrary" or doesn't "actually mean something."
Nice selective quote, there.

Since there is no difference in kind between ex post facto laws and other retrospective laws, the term ex post facto doesn't have any meaning that is relevant to how the law works.
The prohibition against ex post facto laws (1) has a well-settled historical meaning
Yes it does.
and (2) serves as an important protection of liberties.
No it doesn't. Since there's no relevant difference between ex post facto laws and other retrospective laws, the legal prohibition against one but not the other is arbitrary.

We've been over this. The effects of both types of law are the same. The only difference is that one of them is prohibited by the constitution.
And yet you would refuse evidence of the "time and circumstances in which [a] statute[]" was written as "extra-legal" sources. If words vary based on time and circumstance, then we must look to more than just the "literal" meaning of the words to understand them properly.
All we need is the literal meaning at the time they were written.

Like the "pursuit of happiness". Modern readers would almost certainly read "pursuit" as "chase", suggesting that Americans are permitted to seek happiness. But when written, "pursuit" used in this way meant "vocation", thus granting Americans the freedom to work at being happy.
I have yet to deny language or meaning.
You do when reading the second amendment.
But I have another case for you -- one that may find thought-provoking: Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co. (http://www.west.net/~smith/PGE_v_Drayage.htm), 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641 (1968).

Pacific Gas is a California Supreme Court decision that derides the "exclusion of testimony that might contradict the linguistic background of the judge [because it] reflects a judicial belief in the possibility of perfect verbal expression. . . . This belief is a remnant of a primitive faith in the inherent potency and inherent meaning of words. "

I'm curious as to what you make of it. ;)
Admit it. You're having fun.

The Constitution grants power to the federal government. The federal government has no authority outside that explicitly granted in the Constitution. All other powers, including decisions on abortion, death penalty, gay marriage, and all other contentious issues are within the sole jurisdiction of the various states. See amendments 9 and 10 of the Bill of Rights.

The meaning of the constitution is quite clear, and it's not difficult to read. Our founding fathers knew that there would be a need for changes, so they created a specific amendment process to allow changes to be made after a vote by the congress and approval by the states. Unless the changes are made according to the intended process, the meaning of the Constitution does not change.

Of course, some intellect is required to read a 200+ year old document. Some words have evolved, and a little bit of reasoning and research are required do discern the original intent, but it's not hard if you were born with a brain between your ears.

some random additional thoughts:

1. What part of "shall not" doesn't our government understand?
2. "The people" refers to "the people," not any specific group. All citizens.
3. Yes, slavery was assumed. The abolitionists had to compromise. Just goes to show that compromise may not always be the best option and the result will not always be hailed as the best solution to the problem.
4. Blind acceptance of government authority is unpatriotic.

The Constitution grants power to the federal government. The federal government has no authority outside that explicitly granted in the Constitution. All other powers, including decisions on abortion, death penalty, gay marriage, and all other contentious issues are within the sole jurisdiction of the various states. See amendments 9 and 10 of the Bill of Rights.

The meaning of the constitution is quite clear, and it's not difficult to read. Our founding fathers knew that there would be a need for changes, so they created a specific amendment process to allow changes to be made after a vote by the congress and approval by the states. Unless the changes are made according to the intended process, the meaning of the Constitution does not change.

Of course, some intellect is required to read a 200+ year old document. Some words have evolved, and a little bit of reasoning and research are required do discern the original intent, but it's not hard if you were born with a brain between your ears.

1. Welcome to the conversation. Your input is valued. If you truly wish to argue for strict construction, however, you may want to address the arguments I made in this post (http://forums.jolt.co.uk/showpost.php?p=13137118&postcount=12). Thanks.

2. Your view of the Constitution as granting only specific powers to the federal government is largely correct, but trips over the Fourteenth Amendment when it comes to the question of individual rights protected from state authority. Abortion, gay marriage, and the death penalty are valid issues for the federal judiciary because of the Ninth Amendment, the Fourteenth Amendment's Due Process Clause, and the Fourteenth Amendment's Equal Protection Clause. (And, in the case of the Death Penalty, the Eighth Amendment.)

The Consitution is not just a source of federal government power but also a limitation of all government authority in the areas of individual rights protected by the Bill of Rights and the Fourteenth Amendment. Bans on abortion violate the right to privacy (as well as other fundamental rights including the right to control over one's own body.) Bans on gay marriage deny the right to marry as well as deny equal protection based on gender. The death penalty can be constitutional, but sometimes amounts to cruel and unusual punishment.

3. I agree that most of the Constitution is not difficult to discern (and we have the Supreme Court to decide those cases that are difficult.)

4. It is not clear why you think we should adhere to either the literal meaning of the Constitution or its "original intent." I would say that both are necessary, but not the only sources of interpretation of the Constitution.

some random additional thoughts:

1. What part of "shall not" doesn't our government understand?

You'll have to be more specific as to what you are referring.

2. "The people" refers to "the people," not any specific group. All citizens.

Agreed, I think, but I am not sure what you are getting at.

3. Yes, slavery was assumed. The abolitionists had to compromise. Just goes to show that compromise may not always be the best option and the result will not always be hailed as the best solution to the problem.

Mostly agreed, but the problem of slavery stands as an example of how the Constitution is not a "holy" document. It was severely flawed at its inception by its acceptance of slavery. Perhaps the bloodshed of the Civil War might have been avoided if the Constitution had included the Thirteenth, Fourteenth, and Fifteenth Amendments to begin with, instead of endorsing slavery.

4. Blind acceptance of government authority is unpatriotic.

Completely agreed.

That's not how grammar works.

But assuming it does (and it doesn't, I'm not conceding that), what meaning do you think the clause adds? And yes, I will likely respond with a different but equally well supported by the text interpretation and ask you to explain why one is better than the other.

I've explained why I'm right. I'm supported by the grammatical structure of the amendment.

First of all, I think you find that my view of the meaning of the Second Amendment is not significantly different than yours. I merely refuse to erase half of it. Substantively it protects the right of the people to own and use firearms.

Second, I'm not going to go around and around in circles with you further about the interpretation of the Second Amendment. You've stated your view and we disagree about the meaningfulness of the declarative clause. 'Nuff said.



On what basis? The rule was a compound sentence based around a conjunction: "and". Since we cannot, in this case, satisfy both clauses in the rule, which one is more important? That's all I'm asking. On what basis do you grant meaning to the opening clause of the amendment contrary to the grammar of that amendment?

Let's look at the rule (quoted by you) again:

“give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.”

**looks at rule as written and doesn't see a compound sentence based around the conjunction "and"**


I'd rather go with a predefined notion of clarity, but the constitution doesn't give us one.

Yes. We must take the document as written, not as how we wish it could have been written. (Though I think we've shown with, for example, our discussion of the Ninth and Fourteenth Amendment, that it is impossible for the document to be written with the certainty you desire.

Because all law need not be meaningless. "The law", as you put it, is the system that governs us. What the actual content of that system is doesn't matter as long as it's clear and consistent.

1. It is your view that seems to render most, if not all, law meaningless.

2. Law not only need not, but should not, be meaningless. That is not to say it never is, but that it usually isn't -- contrary to your assertions.

3. The actual content of the system does matter -- immensely. A system that violates fundamental rights is not acceptable merely because it is clear and consistent.

4. I disagree that your approach -- especially the absence of precedent -- results in a clear and consistent system of law.

Because it's knowable, and because it "represents the view of the majority, even a supermajority, of the legislative body".

Why are these important concerns? And aren't knowability and majority rule reasons that law should be viewed as having meaning?

I'm not advocating ignoring meaning where there is some. I think the second amendment, for example, has a clear meaning.

But every other clause of the Constitution appears to cause you to waive your hands and concluded meaninglessness.

If a fluent English speaker with no knowledge of American history read the constitution (ideally someone who had never heard of America and had no interest in the document), what would he think it said? That's what the constitution says.

Bizarre. There are values and history enshrined in the consitution. One should not simply ignore the meanings of terms that were well-established at the time the Consitution was written. Ignorance of context and experience is not a virtue.


I don't even know what you mean now by "as a matter of reason and history". I'm the one using reason to interpret the constitution. You're using trust in the founders and the judiciary, and some as yet undefined sense of what's right and valuable.

First, I disagree that you are the one with a reasonable approach to the Constitution.

Second, if we have no trust in the founders why should we slavishly adhere to their words?

Third, I'm really confused by your view of the role of the judiciary. The judiciary is supposed to be an equal branch of the U.S. government, not a mere servant of the legislature.


First, you're abandoning fairness by allowing the judiciary to create meaning in law after the fact.


1. Interpreting the Constitution broadly is not the same as creating meaning after the fact.

2. We appear to disagree (1) as to the meaning of fairness, (2) how one achieves fairness, and (3) the relative importance of fairness -- especially to the extent fairness appears to mean simply consistency. A consistent view can be cosistently wrong.

And second, you're actually presupposing meaning in the constitution here. You're choosing an approach because it gives some measure of protection to your freedoms, but that protection (and those freedoms) are granted by the constitution. Your argument is circular.

1. I don't agree that our freedoms come solely form the Constitution. Rather, they are enshrined and protected by that document.

2. There is nothing circular about arguing that the Consitution ought to protect liberties.

Keep in mind, I'm not asserting that the entire document is meaningless. I'm asserting that it might be meaningless, and your unwillingness to allow for the possibility prevents you from reading and interpreting it impartially.

You've already argued that everyone that finds any meaning in the Bill of Rights (with the exception of part of the Second Amendment) is an idiot and/or liar.

I refuse to accept that the Founders themselves, every Supreme Court Justice in the history of the Republic, and myself are all incapable fo interpreting the document as meaningful -- primarily because it is, in fact, meaningful.

Suggesting that it may all be meaningless may be an interesting thought experiment, but it is neither a necessary or sufficient approach to the Constitution.


You have not been equally explicit. What do you hope to achieve by making the law unfair?

I stopped beating my wife this morning. :rolleyes:

What are those, by the way? I can't think of any.

Again, you might read the relevant Federalist papers which lay out the role of the judiciary as an equal branch of the U.S. government.

Yes I am. That's how knowledge works. Knowledge requires certainty.


Absolute certainty is not necessary or even usually possible for knowledge.

And certainty is possible. At the very least, it is possible to know with certainty the truth value of some things relative to the truth value of other things.

Ah, yes, relative truth is entirely knowable. That is different from the absolute certainty you appear to expect from law. My approach to the law, and the Constitution in particular, does not preclude a large degree of certainty.

Nice selective quote, there.

Thanks. :p (Actually, I though the quoting was both fair and accurate. Please feel free to explain how it wasn't)

Since there is no difference in kind between ex post facto laws and other retrospective laws, the term ex post facto doesn't have any meaning that is relevant to how the law works.

No it doesn't. Since there's no relevant difference between ex post facto laws and other retrospective laws, the legal prohibition against one but not the other is arbitrary.

We've been over this. The effects of both types of law are the same. The only difference is that one of them is prohibited by the constitution.

1. Even if one adopts your view of retrospective law, it is rather silly to argue that a provision that bans some retrospective law is meaningless and valueless because it fails to ban all retospective law.
Isn't some ban on retrospective law better than no such ban?

2. You are right we've been over this. You are wrong that there is no relevant difference between ex post facto laws and retrospective laws.

All we need is the literal meaning at the time they were written.

Like the "pursuit of happiness". Modern readers would almost certainly read "pursuit" as "chase", suggesting that Americans are permitted to seek happiness. But when written, "pursuit" used in this way meant "vocation", thus granting Americans the freedom to work at being happy.


You are trying to dodge the fact that evidence of the literal meaning "at the time they were written" necessarily involves "extra-legal sources." And once you rely on some extra-legal sources, you can't support your rejection of other sources merely on the ground they are "extra-legal."


You do when reading the second amendment.


Meh. I've addressed this above.


Admit it. You're having fun.

Of course I am. :cool: I would have stopped this discussion long ago if I wasn't enjoying it.

I look forward to your thoughts about Pacific Gas. :D

If you truly wish to argue for strict construction, however, you may want to address the arguments I made in this post (http://forums.jolt.co.uk/showpost.php?p=13137118&postcount=12).
You're still going to make people address the ninth amendment? After what I've done to it?

First of all, I think you find that my view of the meaning of the Second Amendment is not significantly different than yours. I merely refuse to erase half of it. Substantively it protects the right of the people to own and use firearms.

Second, I'm not going to go around and around in circles with you further about the interpretation of the Second Amendment. You've stated your view and we disagree about the meaningfulness of the declarative clause. 'Nuff said.
Okay.
**looks at rule as written and doesn't see a compound sentence based around the conjunction "and"**
I thought I edited that out of the post after checking the wording in the next bit.

My point there was without some other guidance as to which section of the rule to give more weight, the meaning of passages containing clauses that don't modify the literal meaning becomes ambiguous.
Yes. We must take the document as written, not as how we wish it could have been written. (Though I think we've shown with, for example, our discussion of the Ninth and Fourteenth Amendment, that it is impossible for the document to be written with the certainty you desire.
I think the ninth amendment, like the second, is perfectly clear. Unlike with the second amendment, however, I find almost no one who agrees with my reading of the ninth.

Without evidence of unenumerated rights, the ninth amendment is without material effect.
1. It is your view that seems to render most, if not all, law meaningless.
It wasn't written terribly well.
2. Law not only need not, but should not, be meaningless.
I would agree. But if it is, our wishing it not to be true doesn't change that.
3. The actual content of the system does matter -- immensely. A system that violates fundamental rights is not acceptable merely because it is clear and consistent.
Now you're presupposing the existence of fundamental rights again.

But your point is sensible. Clarity and consistency are not themselves sufficient to judge whether the law is good law. But they are necessary, and you seem to think they're not as long as other masters are served. I don't have any idea what those masters are, however (except perhaps fundamental rights, which I don't think exist).
4. I disagree that your approach -- especially the absence of precedent -- results in a clear and consistent system of law.
Precedent has value in the current system precisely because the current law isn't clear and courts rule broadly. Since we can't read the law and know what the courts will decide in advance, the rulings of the courts are unpredictable. By allowing precedent weight in legal proceedings, you're causing that first unpredictable judgement to carry over into subsequent cases, reducing that unpredictability going forward.

I can see why you think that's valuable, and I can even see why you think I'd think that's valuable. And I do. Except, precedent encourages broad construction. That the ruling will then become law, combined with what appears to be a broad preference that the law not be meaningless, causes the justices to create law to fill what they perceive as gaps or ambiguities in the statutes, and those precedent-setting rulings are necessarily unpredictable.

So yes, precedent aids predictability, but abandoning precedent and broad construction together aids it even more.
Why are these important concerns? And aren't knowability and majority rule reasons that law should be viewed as having meaning?
Meaninglessness is knowable.

Plus, we can't know that meaninglessness wasn't the intent of the majority.
But every other clause of the Constitution appears to cause you to waive your hands and concluded meaninglessness.
Not quite. As I've said, the ninth amendment has what I think is obvious meaning. Section 1 of the fifteenth amendment has meaning. Sections 1 and 3 of the eighteenth amendment have meaning. Sections 1 and 3 of the twenty-first amendment have meaning. Section 1 of the twenty-sixth amendment has meaning. The entire twenty-seventh amendment has meaning (despite its appalling misuse of commas).

And that's just a random sampling I pulled up. I did exclude some sections for relying upon the word "appropriate".
Bizarre. There are values and history enshrined in the consitution.
If they're enshrined I should be able to read about them in there, then, shouldn't I?
One should not simply ignore the meanings of terms that were well-established at the time the Consitution was written.
Agreed. I didn't stipulate fluency in the language.
Ignorance of context and experience is not a virtue.
Ignorance of context shouldn't matter. Since it's not in the document, the authors couldn't reasonably expect future readers to be familiar with it.
First, I disagree that you are the one with a reasonable approach to the Constitution.
Mine is reasonable in that it's based in reason.

Lawyers seem to have some other meaning of the word reasonable that appears to mean "typical", specifically in reference to the "reasonable man". I can't imagine why they think that's what the word means.
Second, if we have no trust in the founders why should we slavishly adhere to their words?
Because we agreed to. That's how the law works. We follow the law, and we haven't changed it, so we have to abide by it.
Third, I'm really confused by your view of the role of the judiciary. The judiciary is supposed to be an equal branch of the U.S. government, not a mere servant of the legislature.
You're making them equivalent to the legislature, largely eliminating the need to have both.

The judiciary is there to interpret the law. This includes finding inconsistencies in the law, and pointing out where the legislators wrote law that is meaningless.

This is an important role. Otherwise the legislators might have no idea what they've just done (because they don't know the whole of the law, necesssarily, and they might have been so caught up in their own rhetoric that they might think the law actually says what they told the electorate it says).
1. Interpreting the Constitution broadly is not the same as creating meaning after the fact.
Yes it is. Any meaning attributed to the constitution in a judicial ruling was either in the text of the constitution before they read it or it wasn't. If they attribute meaning that wasn't already there, they create meaning (necessarily after the fact).
2. We appear to disagree (1) as to the meaning of fairness,
I'm open to discussions of fairness.
(3) the relative importance of fairness -- especially to the extent fairness appears to mean simply consistency.
I'm serving fairness here because I understand what fairness means, and I see fairness as important.

If there are other principles you'd also like to serve, let me know.
A consistent view can be cosistently wrong.
The law can't be wrong about the law. The law, as a whole, can't violate rights. That's what being the law is.
1. I don't agree that our freedoms come solely form the Constitution. Rather, they are enshrined and protected by that document.
They are enshrined in and protected by that document.

If they have another source, kindly share it. I don't see any other possible source for rights. Rights are legal constructs.
2. There is nothing circular about arguing that the Consitution ought to protect liberties.
Only if you presuppose their existence prior to their protection by the constitution.
You've already argued that everyone that finds any meaning in the Bill of Rights (with the exception of part of the Second Amendment) is an idiot and/or liar.

I refuse to accept that the Founders themselves, every Supreme Court Justice in the history of the Republic, and myself are all incapable fo interpreting the document as meaningful -- primarily because it is, in fact, meaningful.
I don't think they're finding meaning it it. I think they're attributing meaning to it that they think either should be there (making them liars) or is there (making them irrational).

And I suspect both have been true. People who believe they see meaning in the constitution because they view the document with reverence, and they believe the rights it protects pre-existed it, are in the second camp.

Those who see the holes in the law and seek to fill them for the betterment of America, and then simply claim they saw the meaning in the law, are in the first.

I'd have a lot less problem with your position if you accepted that the courts DID create meaning after the fact. That would except you from the "idiots and liars" label because you'd be honest about what the courts are doing. Then you'd just be unfair, a far lesser affront to my sensibilities.
Suggesting that it may all be meaningless may be an interesting thought experiment, but it is neither a necessary or sufficient approach to the Constitution.
Well, no. In-depth examination of every clause would be both necessary and sufficient, but we haven't done that. We're examining this far more broadly.
I stopped beating my wife this morning. :rolleyes:
That's funny. I didn't. *

I'm still curious as to why you think a constitution that violates my rules of fairness is better than one that doesn't.
Again, you might read the relevant Federalist papers which lay out the role of the judiciary as an equal branch of the U.S. government.
Good idea.
Absolute certainty is not necessary or even usually possible for knowledge.
Unfortunately, that wouldn't then be knowledge. Knoweldge requires certainty.
Ah, yes, relative truth is entirely knowable. That is different from the absolute certainty you appear to expect from law.
Not at all. You can know relative truth with absolute certainty.
My approach to the law, and the Constitution in particular, does not preclude a large degree of certainty.
Certainty is binary.
Thanks. :p (Actually, I though the quoting was both fair and accurate. Please feel free to explain how it wasn't)
I had said "actually meant something relative to how the law works", thus constraining my description of the meaninglessness somewhat more than you did.
1. Even if one adopts your view of retrospective law, it is rather silly to argue that a provision that bans some retrospective law is meaningless and valueless because it fails to ban all retospective law.
Isn't some ban on retrospective law better than no such ban?
I know why you might think that. On some issues that's a valid position.

Since most of the effects of ex post facto law can be acheived through the creative application of other retrospective laws, the prohibition of ex post facto law only, with relevant precendents specifically exempting other retrospective laws from the prohibition, grants extra legitimacy to those other retrospective laws, and thus renders the prohibition of ex post facto law pointless, as the same material effects can be acheived by using the permitted other retrospectve laws.

I needed to read that sentence through a couple of times to figure out what I just said.
2. You are right we've been over this. You are wrong that there is no relevant difference between ex post facto laws and retrospective laws.
We'll just have to disagree on that.
You are trying to dodge the fact that evidence of the literal meaning "at the time they were written" necessarily involves "extra-legal sources." And once you rely on some extra-legal sources, you can't support your rejection of other sources merely on the ground they are "extra-legal."
As I've said, that's a problem. The law really needed to cite a reference guide.

We can encourage the selection of a reference guide by interpreting the law literally such that we show legislators the need for a reference guide.

See? That's another important role for the courts. Demonstrate the inadequacies of the law to the legislators by following their instructions and producing undesired results.
I look forward to your thoughts about Pacific Gas. :D
I don't really have time to do that today, but I will get to it.


* I've never understood the objection to the question "Have you stopped beating your wife?" It's a yes-no question, so one of the two answers is necessarily correct. Plus, as a question, it contains no information (interrogative sentences can't contain information), so there's no basis for the inference that a "No" response requires that I still beat my wife.

You're still going to make people address the ninth amendment? After what I've done to it?

Yep.

The discussion between the two of us on the subject may have ended, but my view about the relevance of both the language of and the intent behind the Ninth Amendment remains unchanged.

If someone wishes to adopt your position, that is fine. If you wish you can consider that a stalemate.

If they have another source, kindly share it. I don't see any other possible source for rights. Rights are legal constructs.

(...)

Only if you presuppose their existence prior to their protection by the constitution.

Maybe this came up before, I haven't read the entire thread. Have you ever heard of the Radbruch formula? Radbruch was faced with the problem of explaining why Nazi criminals had violated human rights which didn't exist under the laws of the Third Reich. Radbruch was a positivist, so, like some of the people in this thread, he originally believed that whatever the legislator deemed law was Law and legislation was the only source of legitimacy and thus of human rights. That view was prevalent in Nazi era Germany just as among a large part of the international public lawyers of the time (including the Viennese School of Law).

Then, the Nuremberg trials created instant international public law which can be summed up by the Radbruch formula: Positive (written/legislated) Law is valid unless it evidently and grossly violates Natural Law. The right of a human being not to be subjected to genocide is considered such Natural Law.

Even though positive Nazi German law specifically allowed the systematic discrimination against and eradication of certain ethnicities or religious minorities, these laws were invalid due to the gross and evident violation of Natural Law, and could not legitimize such measures. This reflects the view that certain core human rights are pre-constitutional and base in man's innate human dignity.

Saying that a right presuposes law because it is a legal construct misses the point entirely. Law isn't necessarily legislated - think of contracts and, you mentioned them, precedents. In fact, before there were Acts of Law, people made contracts exchanging goods and expecting them to be kept without anyone assuring their enforceability. The House of Lords, probably Lord Denning, argued that the Court had to recognize the Freedom of Speech and to decide in its favor, long before Parliament ever enacted the Human Rights Act 1998. From a Common Law perspective, it is rather odd to observe someone argue that human rights and basic freedoms could be derived only from a written constitution or some kind of government act rather than from the well of human decency and the bare requirements of communal life in a peaceful society.

Maybe this came up before, I haven't read the entire thread. Have you ever heard of the Radbruch formula? Radbruch was faced with the problem of explaining why Nazi criminals had violated human rights which didn't exist under the laws of the Third Reich. Radbruch was a positivist, so, like some of the people in this thread, he originally believed that whatever the legislator deemed law was Law and legislation was the only source of legitimacy and thus of human rights. That view was prevalent in Nazi era Germany just as among a large part of the international public lawyers of the time (including the Viennese School of Law).

Then, the Nuremberg trials created instant international public law which can be summed up by the Radbruch formula: Positive (written/legislated) Law is valid unless it evidently and grossly violates Natural Law. The right of a human being not to be subjected to genocide is considered such Natural Law.

Even though positive Nazi German law specifically allowed the systematic discrimination against and eradication of certain ethnicities or religious minorities, these laws were invalid due to the gross and evident violation of Natural Law, and could not legitimize such measures. This reflects the view that certain core human rights are pre-constitutional and base in man's innate human dignity.

Saying that a right presuposes law because it is a legal construct misses the point entirely. Law isn't necessarily legislated - think of contracts and, you mentioned them, precedents. In fact, before there were Acts of Law, people made contracts exchanging goods and expecting them to be kept without anyone assuring their enforceability. The House of Lords, probably Lord Denning, argued that the Court had to recognize the Freedom of Speech and to decide in its favor, long before Parliament ever enacted the Human Rights Act 1998. From a Common Law perspective, it is rather odd to observe someone argue that human rights and basic freedoms could be derived only from a written constitution or some kind of government act rather than from the well of human decency and the bare requirements of communal life in a peaceful society.
I have previously argued that the Nuremburg trials were grossly unfair to the accused Nazis on the grounds that they were being held accountable for violating rules that they couldn't have reasonably expected to apply to them.

Furthermore, this belief that there are overarching legal principles which govern the law but are not part of the law, or that rights exist regardless of whether the law recognises them, is a serious problem I have with a common law system generally. You've made it impossible for a rational agent to read the law and from that know all the rules of the land.

I have previously argued that the Nuremburg trials were grossly unfair to the accused Nazis on the grounds that they were being held accountable for violating rules that they couldn't have reasonably expected to apply to them.

Furthermore, this belief that there are overarching legal principles which govern the law but are not part of the law, or that rights exist regardless of whether the law recognises them, is a serious problem I have with a common law system generally. You've made it impossible for a rational agent to read the law and from that know all the rules of the land.
And you have had this nonsensical argument thrown back in your face many times over. What is your problem? If you will not accept that you are wrong, then why can you not at least accept that you have no hope of getting anyone to agree with you who does not already do so? You are never going to get any answer this argument, except argument.

You are wrong about the Nazis because they knew perfectly well that they were committing atrocities, even by pre-Nuremburg standards. They may have chosen to think of themselves as above the law, or certain laws, but they were wrong, weren't they? Just as any criminal who thinks he should not be punished for his crimes is wrong. His/their opinions about it do not matter. So any claim that they could not reasonably have expected to be punished for their actions if they lost the war is bunk.

In a similar way, you are wrong about what a common law system makes possible or impossible. The very fact that common law systems exist and function proves that you are wrong. YOUR discomfort in not being able to know everything all at once is of no matter to the law, or to any legal system, or to any society. Nobody needs to care how you wish things worked, considering that they work perfectly well as they are. Your displeasure with the existing sytems is not proof that they do not work or don't mean anything.

This has been explained and demonstrated time and time again. Nothing has changed, and you are still as wrong as you were with your very first post in this thread. We get it, ok? You wish things worked differently. It's really too bad for you that they don't. But constantly and eternally pointing out how you wish they worked is not going to change the fact that they do work as they are.

I know this will probably scare anyone away from claiming they are a strict constructionist, but I want to move the debate along if possible.

As a "strict constructionist," how do you deal with the following:
(1) the 14th Amendment
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
(3) the 9th Amendment
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

Do you really wish to insist that none of these are protected by the Constitution?


I do consider myself a strict constructionist.

1. I like the 14th Amendment, it protects people from oppressive states.
2. Insofar as the Supreme court is protecting anything other than life, liberty, or property being denied by states to citizens, they are overstepping their bounds.
3. I like the 9th amendment. It says I have unenumerated rights.
4. No problem with that.
5. Suppose I was in a state that passed a law that prevented people without doctoratal degrees from holding a job paying more than $45000. The constitution, as its written, demands that the highest court that should hear my case is the state supreme court. Due process under law, period.

What you are suggesting is that the 14th amendment implies:

1. No unenumerated rights of a citizen of the united states shall be ignored by a state, local goverment, or any other party.
2. The federal court system shall arbitrate what unenumerated rights are held by citizens and are violated.

As a strict constructionist, I would have to say, if the will of the people is that amendment, they should pass that amendment. If the will of the people is to have the federal government using tax receits to run social programs, they should change the constitution accordingly. Pretty simple, follow the rules, or change the rules to the rules that should be followed.

Unfortunately, without this, we have government of men instead of a government of law. This is dangerous for reasons that are bearing themselves out here on a daily basis.

I have previously argued that the Nuremburg trials were grossly unfair to the accused Nazis on the grounds that they were being held accountable for violating rules that they couldn't have reasonably expected to apply to them.

Furthermore, this belief that there are overarching legal principles which govern the law but are not part of the law, or that rights exist regardless of whether the law recognises them, is a serious problem I have with a common law system generally. You've made it impossible for a rational agent to read the law and from that know all the rules of the land.

Just to get this straight: the Nazis were treated in a grossly unfair way because they were punished for murdering countless people? They couldn't reasonably expect to be punished for a genocide they knowingly comitted?

I will, for a moment, fight back my complete and utter disgust at that stance.

The Nazis knew exactly what they were doing when they decided to commit genocide. In order for their regime to work they had to suspend the constitution of the Weimar Republic. Murder and intentional homicide were outlawed in Germany just as much as anywhere else. The only way to work around that in planning to exterminate all European Jews, Slavs, Sinti, Roma, etc. was for Hitler to get plenary powers, suspend the Weimar constitution and enact Nazi laws. The only way to legitimize such behavior was to adopt a strictly positivistic view of the law, only one among a plethora of theories on the validity of laws existing at the beginning of the 20h century. Other theories referred to morals, tradition, history, religion or nature as foundations for the claim of the law to be applied (Rechtsanwendungsbefehl). Eminent German jurists had argued that law was only valid insofar as it expressed Natural Law (going far beyond what the Radbruch formula later required of the Law - as I said, Radbruch was actually a positivis, not a proponent of Natural Law).

As a matter of fact, Hitler wrote in Mein Kampf that he had to eradicate European Jewry because they were the only moral instance posing an obstacle to national socialism, a fascist ideology based on the communitarization and effacement of the human as an individual. The Nazis didn't as much change the law in order to legitimize the slaughter of Jews, they murdered the Jews in order to be able to then abolish the Law completely. They instrumentalized the law for their genocide. It was a ruse, no more and no less, and every single person party to that knew it, members of the government just as much as every little magistrate and lawyer, every public officer, every army general, every Nazi doctor, every one indicted and convicted in Nuremberg.

In order for a member of a certain society to obey its Law, that person need not know or understand the Law in its entirety. Most humans never come in conflict with the law, without it being necessary that they ever read a single statute or judgment. They will learn about the core values pertaining to the Law during their socialization and will (hopefully) implicitly respect human life and physical integrity.

If you actually think that any German legal lay-person knew the definition of murder under German law, for example, you will find that most Germans think it is somewhere along the lines of the US jurisdictions' first degree murder, which in their mind means that it is pre-meditated homicide. In fact, §211 of the German Criminal Code says nothing about pre-meditation, and pre-meditation is not a condition of the mobile element of murder under German law. Murder under German law is intentional homicide when one or more further conditions are met such as certain motives, cruelty, creating a risk of death for an indefinite number of by-standers or a connection to another crime or misdemeanor. Still, these same Germans will not commit murder or intentional homicide, because they inherently know that it is wrong to willfully kill a human being. It should be noted that §211 is a piece of Nazi legislation, that the letter of that law is their creation.

Before the rise of fascism in Germany, the government had slipped from enlightened absolutism into a more or less benevolent totalitarian monarchy, then turned into a democratic republic. The state was there to protect its citizens. Enlightened legal philosophy has taught us that society's premier objective is to protect its members. There was no precedent, no time-tested law proven valid beyond the reach and duration of the Nazi regime that would have allowed a Nazi criminal to think that he was legally sanctioned to turn a machinery of death on a part of his population on the sole ground of their ethnicity.

When compared for legal certainty and transparency, codified law and case law may start out from different directions. Codified law argues by deduction, case law argues by induction. The outcome is usually the same. Codified law is immanently incomplete, it cannot cover all situations humanly imaginable.
In German Law, this problem is solved by so called blanket clauses using undefined legal terms such as good faith, equity or morality (§§133, 138, 157, 242, 315, 826 of the German Civil Code) and by the six accepted methods of interpretation: literal, systematic, historical, teleological, conforming to the Basic Law (constitution) and conforming to European Law.
In French Law such blanket clauses are not employed as much, and these situations are solved through a system of general sets of laws (régimes généraux) by way of framework analogy and teleogical interpretation. These régimes are nowhere to be found in the codes, but are distilled from very specific rules with only a small scope of application.
In comparison, a Common Lawyer is far more restricted by stare decisis and the Common Law rules on the interpretation of statutes than a Civil Lawyer ever is. Also, I have personally observed that a Common Law judge will strive to achieve far greater transparency in his decisions than a Civil Law court ever would. The decisions of French courts may be the worst example of intransparency in judgments, but even European Court of Law decisions sometimes fail to make the reasoning behind the verdict apparent.

I understand that you ideally expect the Law to be contained (and written down) in a few simple rules without exceptions, deviations or ambiguities. Such a Law would be fundamentally unjust, because it would be forced to subject unequal circumstances to equal treatment. Whether it is codified or enshrined in jurisprudence, the law must constantly change to adapt to unexpected situations. It can only conform to any society's concept of justice if it is essentially alive and flexible. Every rule that is set in stone will sooner or later prove to be fundamentally inept as a basis for harmonic life in a changing commonwealth. We must require the Law to be transparent, clear, and precise. But that is not enough, for transparency, clarity and precision do not concern the material content of the Law. A statute can be perfectly clear and grossly unjust.
You are right in arguing that no law should be applied retroactively to a citizen claiming reasonable expectations. But you are wrong in extending such a defense to Nazi criminals. The Nazis were part of the government, and the government cannot claim a reasonable expectation in the validity of a law it created consciously in gross and evident violation of even the most basic requirements of material justice in order to legitimize the slaughter of millions of people. You cannot, as a human being, claim that you were only following orders, when anyone in his right mind was able to see that these orders were based on laws that were fundamentally violating everything that is good and decent and just. That is as much intelligence as can be expected of every human being.

I have thought some more about the question of positivism, pre-constitutional rights and the Law. I have come to the following conclusion. If you are a Positivist, ie if you think that the Law must be contained in written documents and derives its applicability from the simple fact that the government has enacted it as Law, this view cannot work without accepting that the state itself derives its claim to sovereignty from an ulterior source. Since the Enlightenment Age and since the rise of nationalism, we imagine sovereignty to be derived from a social contract, a contract entered into by all members of a society. A contract pre-supposes disposable rights. Therefore, the Positivist requires pre-constitutional rights to explain the sovereignty whereby Acts of Law become applicable. Without pre-constitutional rights, no sovereignty, no source of legitimacy for enactments of the government.

It sounds circular and sophist, but it isn't. There's just no way to work around pre-constitutional rights nowadays.

From time to time during legal arguments, some NSGers will claim to support "strict construction" of the U.S. Constitution.

Law.com provides the following definition of strict construction:

strict construction
(narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

Most commonly strict construction is associate with the argument that things not explicitly stated by the text of the Constitution -- abortion, for example-- are not protected by the Constitution.

I'm curious as to whether anyone will be willing to declare themselves a strict constructionist and/or debate the matter.

Two things:
A- strict construction of the constitution makes the last 200 years of American policy completely illegal
B-provided abortion isn't deemed murder, it is protected by the 9th amendment

But I have another case for you -- one that may find thought-provoking: Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co. (http://www.west.net/~smith/PGE_v_Drayage.htm), 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641 (1968).

Pacific Gas is a California Supreme Court decision that derides the "exclusion of testimony that might contradict the linguistic background of the judge [because it] reflects a judicial belief in the possibility of perfect verbal expression. . . . This belief is a remnant of a primitive faith in the inherent potency and inherent meaning of words. "

I'm curious as to what you make of it. ;)
As you can imagine, I disagree wholeheartedly with pretty much the entire piece.
'When the court interprets a contract on this basis, it determines the meaning of the instrument in accordance with the "... extrinsic evidence of the judge's own linguistic education and experience."'
Sure it does. The judge's education and experience is a body of legal education and experience, and thus is wholly relevant to interpreting a legal document.

We have to accept some outside sources in all cases to avoid all language being meaningless for want of an intrinsic meaning of the symbol "B". It's just two curved lines and one straight line - without some common acceptance that the written language means something, we can't get anywhere. The debate here is which interpretation of the written language one should use. I'm arguing for the literal interpretation - the plain meaning.

In fact, in support of the passage you quoted - "This belief is a remnant of a primitive faith in the inherent potency and inherent meaning of words." - there is a footnote which reads:
'Rerum enim vocabula immutabilia sunt, homines mutabilia'
Words are unchangeable, men changeable. This supports my position. The meanings of the words don't change over time or based on the circumstances of their application. One may well want those meanings to change to suit the situation, but they don't. The words are unchangeable.
'The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.'
This is a gross misapplication of the word "reasonable" if it's being used to support this court's decision. If the plain meaning of the language is clear, then there are no other meanings to which the language is reasonable susceptible. The whole point of plain meaning is that it's obvious and unambiguous. If a reasonable person identifies to language as having a plain meaning, no reasonable person can disagree.

When one argues that a given passage could be taken to mean one thing or another, one is either asserting that the meaning of the passage is undeniably ambiguous, or that it could only be taken to mean this thing if we ignore the actual meanings of the words involved.
'A rule that would limit the determination of the meaning of a written instrument to its four-corners merely because it seems to the court to be clear and unambiguous, would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained.'
On the first point, the denial of the intention of the parties, good. The intention of the parties involved should always be irrelevant because neither side has an interest in presenting that intention impartially. It's not just unknowable, but all the evidence we could possibly find is necessarily biased because it must have been generated by the parties involved. If those parties are involved in a dispute, neither side can reasonably be trusted to serve the truth.

On the second point, our language has attained a tremendous amount of precision and stability, particularly in technical disciplines. There is no reason the law could not become a similar discipline.
'In this state, however, the intention of the parties as expressed in the contract is the source of contractual rights and duties.'
This is another point condradicted by its supporting footnote. I would agree with this claim, that the intention of the parties [b]as expressed in the contract[/i] should be the source of the contractual rights and duties. This is explicitly establishing the language of the contract as the source for information about the meaning of the contract. That's exactly correct.

Unfortunately, given the supporting footnote, I suspect the court didn't mean what it just said.
'A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.'
This is an entirely different claim. This is arguing for the discovery of the actual intentions of the parties involved. This is very much unlike the earlier claim that the intention only mattered "as expressed in the contract".

I'm getting the impression that the court doesn't like the idea of meaning in language because it's very bad at identifying the meaning in language.
'If words had absolute and constant referents, it might be possible to discover contractual intention in the words themselves and in the manner in which they were arranged. Words, however, do not have absolute and constant referents.'
They could if the laws or contracts designated them.

What this court is doing is presupposing that all people view and use language in a relevantly similar way in any given time and place. The court is denying that the words have constant referents, but it is asserting (implicitly) that the indended meanings of the words is understood and shared by all parties involved.

But that's not true.
[intent]'The exclusion of parol evidence regarding such circumstances merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended.'[/indent]
Yes. I don't see that as a problem. Either we assume the parties involved knew what the contract said or we don't. If we do, then there's no need to go any further. But if we don't, then we have no reason to believe the contract has anything at all to do with what the parties thought they were signing. If we don't trust the parties to read and understand the contracts to which they agree, then their intent becomes all-powerful (still unknowable, but let's set that aside for a moment). What they intended the contracts to mean is all that matters, and there's no reason to believe all parties involved had the same intentions, or even had intentions that weren't mutually exclusive. Once you allow the meanings to be self-contradictory, you've entirely left the realm of reason.
'Although extrinsic evidence is not admissible to add to, detract from, or vary the terms of a written contract, these terms must first be determined before it can be decided whether or not extrinsic evidence is being offered for a prohibited purpose. The fact that the terms of an instrument appear clear to a judge does not preclude the possibility that the parties chose the language of the instrument to express different terms. That possibility is not limited to contracts whose terms have acquired a particular meaning by trade usage, but exists whenever the parties' understanding of the words used may have differed from the judge's understanding.'
Specifically in regard to cases where words have acquired particular meanings by trade usage, this is an important role for the judiciary (you once asked me what I thought the judiciary's role was). In some cases, there will be clear misunderstandings based on the use of jargon within contracts. The judiciary should, in these cases, recognise the ambiguity and enforce the contract with that in mind. To use a fairly silly example, if a farmer and an oil company sign a contract regarding the provision of pigs, it's conceivable that one party was thinking of hogs, which the other was thinking of pipeline inspection gauges (http://www.ppsa-online.com/about-pigs.php).

In those cases, having heard from relevant expert witnesses regarding the meanings of words, the court would then allow for the fulfilment of obligations using either meaning of the words (since the contract doesn't specify, and both items are pigs).

I think people would learn pretty quickly to be more careful with their language.

Inserting meaning into legal documents through careful examination of extrinsic evidence strikes me as a self-serving activity on the part of a judiciary striving to make itself more important.

What if one of the parties in this contract dispute is autistic, and thus interprets language wholly literally? Is that party's autism relevant? Is it applicable extrinsic evidence? It would certainly help illumine what that party's intentions were (insofar as that can be done), but is it admissable?

Allowing meaning to be interted into contracts and statutes because the meanings are broadly held to be one thing or another is a sort of democratisation of justice, and that cannot help but oppress the idiosyncratic (like the autist mentioned above).

I have previously argued that the Nuremburg trials were grossly unfair to the accused Nazis on the grounds that they were being held accountable for violating rules that they couldn't have reasonably expected to apply to them.

Furthermore, this belief that there are overarching legal principles which govern the law but are not part of the law, or that rights exist regardless of whether the law recognises them, is a serious problem I have with a common law system generally. You've made it impossible for a rational agent to read the law and from that know all the rules of the land.

This is, by far, the most vile thing you, or anyone else has posted on this forum. You are going on my ignore list, in an attempt to not nauseate myself further.

This is, by far, the most vile thing you, or anyone else has posted on this forum. You are going on my ignore list, in an attempt to not nauseate myself further.
I'm not arguing that the Nazis didn't do vile things. I'm just objecting to the pseudo-legal patina the Nuremburg trials cast over the entire affair.

See? What Maineiacs did here was read into my remarks. Nothing I said there was terrible offensive - or offensive at all, by my reading.

I'm not arguing that the Nazis didn't do vile things. I'm just objecting to the pseudo-legal patina the Nuremburg trials cast over the entire affair.

That's ridiculous. You're missing the point entirely. It wasn't the Nuremberrg trials that cast a "pseudo-legal patina" over anything. The Nazis enacted "pseudo-law" that had no chance of surviving any kind of legal scrutiny. If you don't expect to be punished after comitting genocide and killing a considerably part of your own constituency, something is seriously wrong with you.

In fact, it seems to be a consensus among the people in this thread that something is indeed seriously wrong with you, as this isn't the first time you get nothing but criticism for this point of view. Go, read a treatise on the Law of Nations. Maybe it'll do you some good.

What Maineiacs did here was read into my remarks. Nothing I said there was terrible offensive - or offensive at all, by my reading.

You said that Nazi criminals could reasonably expect not to be punished for what they did.

Well: They murdered Jews. Of 118 members of my family, only 18 survived the Nazis. So you said the Nazis didn't have to expect being punished for murdering 100 great uncles, great aunts and great cousins of mine. Consider me deeply offended by what you said.

I'm not arguing that the Nazis didn't do vile things. I'm just objecting to the pseudo-legal patina the Nuremburg trials cast over the entire affair.

See? What Maineiacs did here was read into my remarks. Nothing I said there was terrible offensive - or offensive at all, by my reading.

What you said was, and I quote:

I have previously argued that the Nuremburg trials were grossly unfair to the accused Nazis on the grounds that they were being held accountable for violating rules that they couldn't have reasonably expected to apply to them.


You are specifically claiming in the above sentence that the trials were unfair because the Nazis didn't think they should have been punished by that tribunal using those laws.

It is impossible for you to claim that this statement does not grant criminals the right to exempt themselves from the law. If the Nazis had the right to claim that war crimes law did not apply to them, then so does any common murderer have the right to claim that no one has the power or authority to hold them accountable. You may not be able to see how full of shit your argument is, but trust me, the rest of the world can.

Maineiacs did not read anything into your statement. What he/she was reacting to was put there by you. If you are trying to deny it now by blaming Maineaics for it, then you are just yet again backpedaling dishonestly from an insupportable statement.

What you should do is say "oops," and leave, just like in "The Producers." Say "oops," and leave.

The courts usually do a prety good job at exercising judicial restraint and not reading too much into the Constitution. However, the courts are justified in making a few logical leaps away from the text of the Constitution to decide a matter not explicitly described therein. For example, we all know that no man may be deprived of life, liberty, or property without due process of law. However, does this address the question of whether public Federal employees have a right to a hearing before they may be fired for cause?

The Constitution nowhere expressly states that public federal employees are entitled to a hearing before they may be fired for just cause. It does not set up what manner of hearing must be held. Is the Constitution silent on this matter?

I do not believe that it is and to reach this conclusion I have to read a bit into the document. I admit that despite my love of judicial restraint and small government, I think that this matter is touched upon by the Constitutional language above mentioned. The right to be a federal employee lies somewhere between liberty and property. You have the right (not explicitly stated in the Constitution) to pursue a career in the federal government as an employee. Once you obtain a job with the Federal government you have something similar to a property interest in continuing to work at that job.

If you have such a libertyish and propertyish right, it naturally follows that this may not be taken from you by the government without due process. What is the due process that is needed? Well who knows? The court must invent some hopefully quite minimal process or else simply state that due process must be given and let the rest of the political process figure out what it means and if the process is not good enough once it is challenged the courts can tell the rest of the government to go ahead and try it again.

Although somewhat cumbersome, I prefer the second option because it seems to provide the most restraint.

Where's the option for repealing the declaration of independence? :p

I want to be part of Britian again.


You guys would never have elected Bush (I hope).

Than again...I dont know how differen history would be without the US...so I recant taht statement.

Where's the option for repealing the declaration of independence? :p
Nah, America's not badass enough to be in the Commonwealth.

I do consider myself a strict constructionist.

That's swell. Why?

1. I like the 14th Amendment, it protects people from oppressive states.

Yes, it protects people from being deprived of life, liberty, or property or from being denied equal protection of the law. You appear to assume this is consistent with strict construction. Care to explain?

2. Insofar as the Supreme court is protecting anything other than life, liberty, or property being denied by states to citizens, they are overstepping their bounds.

Pray tell, what is the strict construction of "liberty"? Does it include the right to free speech? Free exercise of religion? Privacy? Why or why not?

3. I like the 9th amendment. It says I have unenumerated rights.

Which directly contradicts the view that only enumerated rights are protected by the Constitution.

4. No problem with that.

But how do you square that with strict construction?

5. Suppose I was in a state that passed a law that prevented people without doctoratal degrees from holding a job paying more than $45000. The constitution, as its written, demands that the highest court that should hear my case is the state supreme court. Due process under law, period.

1. You don't seem to be addressing the question of the many unenumerated rights that are held to be protected by the Constitution.

2. There are many problems with your example. Among them are: (1) are you saying that simply because the state court system exists due process is served?
(2) where in the Consitution does it say that the federal court system has no business hearing a case of deprivation of due process?
(3) what exactly is the state supreme court supposed to do?

What you are suggesting is that the 14th amendment implies:

1. No unenumerated rights of a citizen of the united states shall be ignored by a state, local goverment, or any other party.
2. The federal court system shall arbitrate what unenumerated rights are held by citizens and are violated.

As a strict constructionist, I would have to say, if the will of the people is that amendment, they should pass that amendment.


The 14th Amendment clearly and undeniably protects liberty from infringement by state or local government. (Not from infringement by non-state entities. Only state action is forbidden, not private action.) That liberty is not empty, but includes unenumerated rights.

Another amendment is not necessary because Article III, the 14th Amendment, and the 9th Amendment already give the federal judiciary a critical role in the protection of liberty, including unenumerated federal rights.

If the will of the people is to have the federal government using tax receits to run social programs, they should change the constitution accordingly. Pretty simple, follow the rules, or change the rules to the rules that should be followed.

You'll have to explain what part of the Constitution forbids the federal government from using tax receipts to run social programs. That seems rather obviously within the powers of Congress laid out in Article I of the Constitution.

Unfortunately, without this, we have government of men instead of a government of law. This is dangerous for reasons that are bearing themselves out here on a daily basis.

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

— James Madison, Federalist No. 51 (http://www.yale.edu/lawweb/avalon/federal/fed51.htm)(emphasis added)

The 14th Amendment clearly and undeniably protects liberty from infringement by state or local government. (Not from infringement by non-state entities. Only state action is forbidden, not private action.) That liberty is not empty, but includes unenumerated rights.

Another amendment is not necessary because Article III, the 14th Amendment, and the 9th Amendment already give the federal judiciary a critical role in the protection of liberty, including unenumerated federal rights.

...

You'll have to explain what part of the Constitution forbids the federal government from using tax receipts to run social programs. That seems rather obviously within the powers of Congress laid out in Article I of the Constitution.



If "liberty" means unenumerated rights, why didn't these amendments specify this for clarity? I would assume you believe this is unnecessary, I do not. Thats what makes me a strict constructionist. If we can make rules for how every other organization in the country is supposed to behave with an attempt to have legal clarity, my expectation is that the charter for the federal government should also have such clarity and not be open to broad interpretation.

As an example, it seems odd that Social Security is "obviously within the powers of congress" given that the supreme court agreed to hear Helvering v Davis and its decistion had three dissenters. You could read the 10th amendment sometime and perhaps look up the word federalism for further insight about what I think the US congress should not be doing.

Ultimately my reply to you as a strict constructionist would be that amendments 9 is weak, all it says is that citizens have rights that aren't in the constitution. Amendment 14 is very weak, it basically forces states to have legal recourse in situations involving life, liberty, and property. All states do have legal recourse for these things.

Your belief that these in aggregate are a judicial blank check is a function of your non-strict views not a contradiction of my strict ones.

As an example, it seems odd that Social Security is "obviously within the powers of congress" given that the supreme court agreed to hear Helvering v Davis and its decistion had three dissenters. You could read the 10th amendment sometime and perhaps look up the word federalism for further insight about what I think the US congress should not be doing.

Only Justices McReynolds and Butler dissented, and they didn't write opinions.

I am not a "native" US lawyer, but I honestly doubt a strict construction of the "general Welfare of the United States" mentioned in Art. I § 8 of the US Constitution is possible. The reason the US Constitution survived for over 200 years without a substantial overhaul and with only 27 amendments is that it contains such flexible language requiring a certain amount of extensive construction. As I have said before, any Law that is set in stone is bound to fail miserably in the face of a changing and developing society.

Quid, if you applied strict construction to "due process"? The result would be nonsensical. Due process in itself is a heuristic term which does not immanently contain any rules of procedure.
Imagine constructing "nemo tenetur" strictly. You'd actually accept that nobody can be forced to accuse himself or herself in or outside of court. But do you think the Romans or the Founding Fathers or anyone before the year 2000 were considering whether you should have the right to stay silent about the password to an encrypted image on your harddrive?

The term "strict construction" is a smokescreen. It's a conservative's magic trick to halt progress and the accomplishment of equality and justice. Because what people mean by strict construction is literal construction, but what's the literal meaning of "general Welfare"? It could be anything. So, in fact, strict construction, when argued by the conservative, becomes "minimal actionable rights" construction and "minimal due process" construction. In restricting a citizen's standing in court, strict constructionists enlarge the powers and prerogatives of the state; therefore proponents of strict construction should be barred from using "small government" as an argument, as they reduce the scope of citizen protection enshrined in the Constitution, not the scope of government.

So, here's what I - nowhere close to an expert on the US constitution - think on Art. I § 8 and the 10th amendment. Much like the German Constitution (which in some parts was modelled on the US Constitution) in Artt. 30, 31, 70 and 83, jurisdiction ratione materiae is attributed to the states unless it is delegated to the Union, unless its exercise by the states is explicitly prohibited or unless it is reserved to the people. But Art. I § 8 contains a group of clauses that clearly attest to implied powers of Congress. Furthermore, defining the scope of Congress's power of taxation by the term "general Welfare", the Constitution employs an element of subsidiarity (creating shared legislative jurisdiction ratione materiae), a theory from canon law claiming that problems should be dealt with on that level of a hierarchy where it can be handled most effectively. One could (in my opinion, successfully) argue that general Welfare is at stake when a state-level solution to the problem at hand risks being ineffective and only a federal measure can adequately resolve the problem. Considering the historic background of Helvering v Davis, it is feasible to view old age poverty as a serious, general Welfare issue which would not, in all probability, have been dealt with adequately by the states in 1935. As a German lawyer, I would have, faced with a similar case, gone so far as to argue that differing solutions to old age poverty among the states could have spawned a mass exodus to the state promising the most favorable conditions, creating great social and economic unrest and threatening the balancedness of living conditions throughout the Union, thereby endangering general Welfare.

Of course, as a German lawyer I will never be faced with that problem, because under the Basic Law, only the Union has the power to raise taxes, and the Federal Parliament not only has the jurisdiction but is under a constitutional duty to provide and maintain the legal framework for some sort of social security. ;)

*blank*

It is rather disappointing that you chose not to answer the majority of what I said. But I guess letting my points go unrebutted is your perogative.

If "liberty" means unenumerated rights, why didn't these amendments specify this for clarity? I would assume you believe this is unnecessary, I do not.

I repeat: what is the strict construction of "liberty"? Does it include the right to free speech? Free exercise of religion? Privacy? Why or why not?

I already detailed the many of the unemerated rights that are included in the liberty protected by the 9th and 14th Amendments. You haven't explained why these rights are not protected other than to make some vague claim of a lack of clarity.

Is it clear that the enumerated rights are protected by the 14th Amendment? If so, why not unenumerated rights. Why is it not clear that the 9th Amendment protects unenumerated rights?

I think the 14th Amendment and 9th Amendment are perfectly clear -- they just don't support your political philosophy.

Thats what makes me a strict constructionist. If we can make rules for how every other organization in the country is supposed to behave with an attempt to have legal clarity, my expectation is that the charter for the federal government should also have such clarity and not be open to broad interpretation.

You seem to assume that (1) the Constitution is no different than any other document, despite its history and, more importantly, (2) no other documents are interpreted broadly. Focusing on the second point, you are simply wrong as a matter of fact and law -- it depends entirely on the document, whether it be a statute or a contract.

Besides, what is so important about clarity and why can clarity only be acheived by strict construction? Hmmm?

As an example, it seems odd that Social Security is "obviously within the powers of congress" given that the supreme court agreed to hear Helvering v Davis and its decistion had three dissenters.

As has already been pointed out, Helvering v. Davis (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0301_0619_ZO.html), 301 U.S. 619 (1937), had only two dissenters and they wrote no opinion.

Are you really going to claim that a view has constitutional validity because 70 years ago two members of the "Four Horsemen" didn't like Social Security but didn't feel their objection was worthy of a written dissent?

You could read the 10th amendment sometime and perhaps look up the word federalism for further insight about what I think the US congress should not be doing.

I'm quite familiar with both the 10th Amendment and federalism, thank you very much. Neither supports your position that the U.S. Congress has no constitutional business in social welfare. To the contrary, Congress is expressly empowered to provide for the general welfare by Article I of the Constitution. You appear to be reading your own political philosophy into the Constitution. If your philosophy can be read in, so can mine.

Ultimately my reply to you as a strict constructionist would be that amendments 9 is weak, all it says is that citizens have rights that aren't in the constitution. Amendment 14 is very weak, it basically forces states to have legal recourse in situations involving life, liberty, and property. All states do have legal recourse for these things.

So the 9th and 14th Amendments are "weak," but the truism of the 10th Amendment is strong? Why? As a strict constructionist, how do you justify this heirachy of Amendments?

Moreover, "all" the 9th Amendment says is that citizens have rights that aren't enumerated in the Consitution. That directly contradicts the view that only enumerated rights are protected.

The 14th Amendment not only protects life, liberty, and property through the Due Process Clause, but also protects equal protection under the law. The promise of the 14th Amendment Due Process Clause is not merely some hollow formalism about having legal recourse that is meaningless. Even under your jaundiced interpretation one has rights to liberty that must be honored by the states.

And, once again, do you agree that the enumerated Bill of Rights is included in the Due Process Clause? If not, why? If so, how do you distinguish between the Bill of Rights and unenumerated rights? How is liberty a substantive protector of one but not the other?

Your belief that these in aggregate are a judicial blank check is a function of your non-strict views not a contradiction of my strict ones.

I don't believe that the Constitution is a "judicial blank check." I do, however, believe the Constitution has meaning and the judiciary has a role as a equal branch of government -- as the Constitution itself sets forth.

*snip*

Thank you for your quite correct and most eloquent contributions to this thread.

You're welcome. :)

From time to time during legal arguments, some NSGers will claim to support "strict construction" of the U.S. Constitution.

Law.com provides the following definition of strict construction:

strict construction
(narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

Most commonly strict construction is associate with the argument that things not explicitly stated by the text of the Constitution -- abortion, for example-- are not protected by the Constitution.

I'm curious as to whether anyone will be willing to declare themselves a strict constructionist and/or debate the matter.

"Strict construction" = "Return the legal landscape of the USA to what existed when the Framers were alive."

In other words, screw anybody who isn't a wealthy white Christian heterosexual male (i.e. the majority of the country.)

As has already been pointed out, Helvering v. Davis (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0301_0619_ZO.html), 301 U.S. 619 (1937), had only two dissenters and they wrote no opinion.

Are you really going to claim that a view has constitutional validity because 70 years ago two members of the "Four Horsemen" didn't like Social Security but didn't feel their objection was worthy of a written dissent?


I'm curious about your point here. Does the supreme court generally hear cases and write opinions where the constitutionality is "obvious" or was this just an anomaly?

I'm curious about your point here. Does the supreme court generally hear cases and write opinions where the constitutionality is "obvious" or was this just an anomaly?

Sorry for cutting in again. As I said, I'm not an expert, but it seems to me Congress had tried to implement compulsory contract schemes before, which were regularly struck down by the Supreme Court, and there was a question about whether the Social Security Act (specifically designed not to create such a compulsory contract scheme) was still in conflict with the 10th amendment or fell under the scope of Art. 1 § 8 of the US constitution, though it did not contain any language pointing to a compulsory insurance contract scheme any more.

The problem wasn't actually (tax financed) social security benefits! It was compulsory contracts. Congress had no power to force a private citizen to enter into a contract (concerning social security). It very well had the powers to tax and to grant old age benefits, ie social security.

But tell me: Do Supreme Court Justices tend to stay silent and not write dissenting opinions when they are positively convicted of their stance?

Sorry for cutting in again. As I said, I'm not an expert, but it seems to me Congress had tried to implement compulsory contract themes before, which were regularly struck down by the Supreme Court, and there was a question about whether the Social Security Act (specifically designed not to create such a compulsory contract theme) was still in conflict with the 10th amendment or fell under the scope of Art. 1 § 8 of the US constitution, though it did not contain any language pointing to a compulsory insurance contract scheme any more.

The problem wasn't actually (tax financed) social security benefits! It was compulsory contracts. Congress had no power to force a private citizen to enter into a contract (concerning social security). It very well had the powers to tax and to grant old age benefits.

But tell me: Do Supreme Court Justices tend to stay silent and not write dissenting opinions when they are positively convicted of their stance?

Your main point is of interest and does a fairly good job of torpedo-ing this as a social welfare example.

I would assume that justices write a dissent when they think one is necessary or they have a point to make. Why do you ask?

Your main point is of interest and does a fairly good job of torpedo-ing this as a social welfare example.

I would assume that justices write a dissent when they think one is necessary or they have a point to make. Why do you ask?

My main point was that social security was not the issue. If I remember correctly, you presented Helvering v Davis in support of your argument social security was not obivously constitutional.

I asked because I was under the impression you were implying that the constitutionality of social security per se (without view to the scheme) was an issue in 1937 and still should be one today. But apparently, and as you just confirmed, not even the two dissenting Justices thought it was necessary to write an opinion or to make a point of the unconstitutionality of social security.

Again, it was you who brought up Helvering v Davis, misrepresented the circumstances of the decision, and argued that the constitutionality of social security legislation by Congress was not obvious, but doubtful. I corrected your representation of the circumstances of the decision, argued that Congress was well within its rights when passing the Social Security Act 1935, that the Act had to be examined as to the implemented scheme and not as to its objective of providing social security, and that the constitutionality of social security was not doubtful, or at least that the decision in Helvering v Davis is not evidence of such doubt.

One more thing: there can be no doubt that the framers of the constitution did not have social security in mind. At the end of the 18th century, nobody did. If a strict constructionist Supreme Court had struck down the Social Securities Act 1935 in 1937 just because there was no specific, unequivocal language in the US constitution granting Congress the power to make laws providing for social security, that would have shed light on the utter ridiculousness of strict constructionism concerning a legal document at the time well into its second century and still in use today.

I'm curious about your point here. Does the supreme court generally hear cases and write opinions where the constitutionality is "obvious" or was this just an anomaly?

I'm curious as to your point here. It was you that stated that strict construction was inconsistent with federal social programs and I asked you to explain.

You brought up Helvering v. Davis, 301 U.S. 619 (1937). You seem to think the mere existence of a Supreme Court case on a subject means that that subject is necessarily in reasonable dispute. My view would be some cases are more obvious than others. Whether the Supreme Court hears a case depends on a variety of factors.

In the case of Helvering, you are talking about a 70-year old case decided in a time when our view of the relationship between government and the economy was shifting. The two dissenters were notorious opponents of all New Deal programs, but even they didn't bother to author a dissenting opinion in the case. I find the majority opinion more than convincing that the 10th Amendment was not a serious impediment to Social Security.

I'm lost. Which one of you is the strict constructionist? :confused:

I'm lost. Which one of you is the strict constructionist? :confused:

:D

I am NOT a strict constructionist.

Liljzambique is a strict constructionist.

Llewdor claims to be a strict constructionist, but I think his views are not merely for strict construction but rather for an altogether different legal system.

I have previously argued that the Nuremburg trials were grossly unfair to the accused Nazis on the grounds that they were being held accountable for violating rules that they couldn't have reasonably expected to apply to them.

Furthermore, this belief that there are overarching legal principles which govern the law but are not part of the law, or that rights exist regardless of whether the law recognises them, is a serious problem I have with a common law system generally. You've made it impossible for a rational agent to read the law and from that know all the rules of the land.

I'm not arguing that the Nazis didn't do vile things. I'm just objecting to the pseudo-legal patina the Nuremburg trials cast over the entire affair.

See? What Maineiacs did here was read into my remarks. Nothing I said there was terrible offensive - or offensive at all, by my reading.

As has been pointed out you really did cross the Rubicon of offensiveness with your bolded comments above.

Llewdor claims to be a strict constructionist, but I think his views are not merely for strict construction but rather for an altogether impossible legal system.

Fixed, tct

Most Strict Constructionists like myself base their understanding of the Constitution on the letters written by the Founding Fathers.

Article 1: Tells what the Congress can (1:8) and cannot (1:9) do, with a little leeway in

Article 2: The President, how he is elected (2:1) and what he/she can or cannot do (2:2)

Article 3: Judicial Branch, Trial by Jury, Role of the Supreme Court (Note that the power of Constitutionality was not included in the Constitution)

Article 4: States and the powers alloted to and denied

Article 5: How Ammendments are added

Article 6: Debts, the Feds are over all, Oaths are held sacred

Religion: While Religion can influence the Government (It always will, even if you ban Religion), the Government cannot pass laws that affect Religion (Hence why all religious facilities are Tax Free)

Speech: Protects your right to say something I don't agree with, no matter how unpopular

Guns: Protects the right of the People to own and Posses guns, and to form militias if neccessary to protect their rights (And yes, they did anticipate the Machine Gun, as Leonardo da Vinci almost invented one in the 1600's)

Press: Free Press = Free People, and the newer members of this group state that it should apply to the Broadcast and Internet media

Quartering Soldiers: The Feds cannot force the people to house soldiers without consent

Search and Seizure: There has to be good Probable Cause. (Note: the IRS does not need a warrant anymore, and violates this right)

Grand Jury: Major crimes require indictment by Grand Jury before it can be tried (Note: Military Personell are to be tried by the Millitary)

No Double Jeopardy: Cannot charge twice without new evidence

Claiming the Fifth: cannot be forced to testify against yourself

Right to Life, Liberty, etc...: Cannot be deprived of various rights unless convicted of a serious crime

Speedy Trial: You have the right to get your trial done quickly, usually with Time Served included

Confrontation of Witnesses: You have the right to confront your accuser

Trial by Jury: You have the right ot a trial by your peers

Cruel and Unusual Punishment: This is a sticky one, though most Constructionists are okay with work parties to shorten prison spans. Low bails, non-inflated fines

Enumeration: These are just a list of some rights protected by the Constiution, other are retained by the People, and not by the Government

Judicial Limits: Your boned if you commit a crime outside the country

Pres and VP: The Pres and VP are elected together and each is nominated to their level

No Slavery: you cannot own another person

Citizenship: you are either Born a Citizen or Naturalized

Racial Voting: States that you cannot keep a person from voting based on Race

Income Tax: gives the IRS the power to ignore all other parts of the Constitution

Senators: Elected by the People (Removes the State Reps)

Sexual Voting: Cannot prevent people from voting because of Gender

Term length: How long the Congress is in Session

Term Limits: keeps the people from voting in the Pres for more than two full/half terms

DC can vote: gives DC 3 votes for the Pres

No Poll Tax: means that you cannot be taxed for voting

Line of Succession: Tells you who is going to take over should the President die, and goes all the way down the list

Voting age 18: you have to be 18 to vote

Pay Raises: Congress cannot increase their own session's pay raise.

A Strict Constructionist also believes that if it isn't a crisis that demands action on a specific item, than you need to give congress the ability to vote on it via Ammendments. The Founding Fathers feared big governments, and the Constitution is designed to try and keep government small.

Right to Life, Liberty, etc...:

And there in lies the problem. How does a "strict constitutionalist" define liberty? The constitution does not...

Most Strict Constructionists like myself base their understanding of the Constitution on the letters written by the Founding Fathers. *snip*
A Strict Constructionist also believes that if it isn't a crisis that demands action on a specific item, than you need to give congress the ability to vote on it via Ammendments. The Founding Fathers feared big governments, and the Constitution is designed to try and keep government small.

I have already demonstrated that strict constructionism does not favor small government. In restricting personal freedom and due process, it enlarges the powers of government and limits the possibilities for citizens to counteract.

Also, "broad" constructionists base their understanding of the Constitution on the letters written by the Founding Fathers as well. "Broad" constructionists are just not delusional enough to believe that the founding fathers were psychics who all knew what would be necessary for harmonic life in the US in 2007. But to the contrary of what some strict constructionists seem to argue or at least imply inside and outside of this thread, an extensive construction will always be based on the letter of the law and not result in an interpretation contra legem. It just won't stop at the letter, but will actually strive to make sense of the constitution as the foundation of a complex legal, social and economical system as well.

My main point was that social security was not the issue. If I remember correctly, you presented Helvering v Davis in support of your argument social security was not obivously constitutional.

I asked because I was under the impression you were implying that the constitutionality of social security per se (without view to the scheme) was an issue in 1937 and still should be one today. But apparently, and as you just confirmed, not even the two dissenting Justices thought it was necessary to write an opinion or to make a point of the unconstitutionality of social security.

Again, it was you who brought up Helvering v Davis, misrepresented the circumstances of the decision, and argued that the constitutionality of social security legislation by Congress was not obvious, but doubtful. I corrected your representation of the circumstances of the decision, argued that Congress was well within its rights when passing the Social Security Act 1935, that the Act had to be examined as to the implemented scheme and not as to its objective of providing social security, and that the constitutionality of social security was not doubtful, or at least that the decision in Helvering v Davis is not evidence of such doubt.

One more thing: there can be no doubt that the framers of the constitution did not have social security in mind. At the end of the 18th century, nobody did. If a strict constructionist Supreme Court had struck down the Social Securities Act 1935 in 1937 just because there was no specific, unequivocal language in the US constitution granting Congress the power to make laws providing for social security, that would have shed light on the utter ridiculousness of strict constructionism concerning a legal document at the time well into its second century and still in use today.

I understand all this, but what does any of it have to do with how many dissenters Helvering v Davis had or whether they wrote out their dissension?