In this thread I shit all over "strict constructionism"

[Sueven]

In another thread, someone brought up Obama's adherence to a "living constitution" and rejection of "strict constructionism" as an argument against him.

There has been a conservative meme recently in which "strict constructionism" is viewed as the only acceptable method of Constitutional interpretation and the only acceptable judicial philosophy for a Supreme Court nominee. There is also a general sense that "strict constructionism" and "originalism" are the same thing, which is not true.

To clarify that point: Originalism simply refers to the notion that the Constitution ought to be interpreted based on what it says. It runs contrary to the idea that the Constitution ought to be interpreted according to the general philosophical principles it stands for. There is a whole host of variety within originalist thought-- some originalists prefer to use original public meaning (when interpreting a word in the Constitution, you should refer to what that word was commonly thought to mean at the time-- basically, pick up a dictionary from 1787 and look it up) while others prefer to use original intent (the word ought to be interpreted based on what the framers intended the word to mean). Following one notion versus the other can have profound consequences for the outcomes that a jurist reaches.

I argue that "strict constructionism" suffers from the same failings as any other judicial philosophy. Adopting it inherently requires a number of value judgments. Strict constructionism does not follow straightforwardly from the text of the Constitution. The arguments of strict constructionism can be turned on their head and used to criticize the philosophy. The outcomes are as indeterminate as those employed under most other systems of jurisprudence. There is nothing natural, inherent, or logically necessary about strict constructionism.

There is also some dispute about what "strict constructionism" means. For the purposes of this thread, I'm referring to the judicial philospohy employed by Justice Scalia and trumpeted by conservative folks nationwide. I don't know what Scalia is referring to his philosophy as these days, he may very well be using a different term.

With that in mind, I would like to invite any of you who disagree with me to do one of two things:

1. Criticize anything other than strict constructionism, and I will demonstrate why either (a) strict constructionism suffers from the same flaw or (b) why that criticism is irrelevant.

2. Defend or support strict constructionism, and I will demonstrate why either (a) that defense is unwarranted and incorrect or (b) many other judicial philosophies share the same virtue.

While there are many lawyers who have no knowledge about or interest in Constitutional theory, I would be curious to hear what Sirensa thinks, if she has thoughts on the subject.

[Mak]

Not sure that I'm really taking a firm stance on either of your two options, but let me toss something out on #2:

The Constitution should be interpreted strictly, as it is a legal document, and despite a subjective "I think they really meant this..." you would need to look at it what it says at face value. I think the 2nd Amendment is a good example of this. Many people are now saying that it means many other things than what it actually says. I think it's the responsibility of any judge looking at it to rule that it states people have the right to bear arms. You can muddy it up with the intent of militia or other things, but at the end of the day it seems pretty clear what the actual words says.

As to it being a "living" document, I've always been under the impression that it was such because of the provisions for amendments.

(After midnight here, so I haven't done any quoting or anything- sorry.)

[Aabidano]

Originalism simply refers to the notion that the Constitution ought to be interpreted based on what it says .... There is a whole host of variety within originalist thought-- some originalists prefer to use original public meaning (when interpreting a word in the Constitution, you should refer to what that word was commonly thought to mean at the time-- basically, pick up a dictionary from 1787 and look it up

Isn't this the general legal practice? Judges are there to use the law as it is written and approved by the people, not as they think it was intended.

[Sueven]

Isn't this the general legal practice? Judges are there to use the law as it is written and approved by the people, not as they think it was intended.

Generally yes. The first thing you do when interpreting a law is to look at the plain meaning of the text. If the meaning of the law is obvious from the plain language, then that's the interpretation. Often, however, the meaning is still not clear, and that's when you get into debates about the intent of the legislature, or about which outcome is consistent with the policy behind a law, and so forth.

Mak:

Let's take the second amendment as an example.

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.

Original public meaning has an issue with old text like this. What does "arms" mean? In 1787, it assuredly referred to the flintlock rifles and other guns available at the time (forgive me I don't know much about the history of gun manufacture), along with knives, pitchforks, and so on. It did not refer to semiautomatic handguns, to tasers, to mace and pepper spray, because such things had not yet been invented.

If you interpret "Arms" to be an ambiguous embrace of those weapons which we feel are appropriate included under the protections of the second amendment, then you have turned "arms" into a living, evolutionary word which is not tethered to the meaning in 1787.

I would be interested to see if anyone could craft a definition of "arms" which would include the things we want it to include (most guns, knives, tasers, pepper spray, etc) and exclude the things we want it to exclude (SAM's, really f'ing big guns, tanks, rocket launchers, powerful explosives).

There are other issues-- why is the language "a well regulated militia, being necessary to the security of a free state" in there? Does that language simply explain the rationale for protecting the right to bear arms, or does it do more substantive work?

[Kilmoll the Sexy]

I would argue the 2nd Amendment is there for as much protection against the oppression of its own government as it is against foreign armies. Most of the original articles in the Bill of Rights directly correspond to arguments present in the Declaration of Independence. The time at which it was written was of course after gaining freedom from a repressive government and was written 15 years after

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security

I would argue that in the wording and context of the document would point to its meaning as modern arms....which of course would continue to evolve. There have been some stories coming out of some branches of the military that in conjunction with what this jackass Obama has in his platform should scare the shit out of you. Quite frankly it reminds me of pre-holocaust Germany. Apparently the US military questions recruits about whether they would be willing to shoot US citizens and also has had training on rounding up US citizens to disarm them. You can check that out at http://prisonplanet.com/articles/februa ... ricans.htm

edit: link included seems to be pretty right wing stuff....liberals beware

[Animale]

I would argue that in the wording and context of the document would point to its meaning as modern arms....which of course would continue to evolve. There have been some stories coming out of some branches of the military that in conjunction with what this jackass Obama has in his platform should scare the shit out of you. Quite frankly it reminds me of pre-holocaust Germany. Apparently the US military questions recruits about whether they would be willing to shoot US citizens and also has had training on rounding up US citizens to disarm them. You can check that out at http://prisonplanet.com/articles/februa ... ricans.htm

edit: link included seems to be pretty right wing stuff....liberals beware

Wait, wait... It's Obama's fault that the military trains for civilian uprisings? Who's the Commander in Chief at the moment? Oh right, a god-fearing good white man who would never create military situations where the Lucifer effect can run rampant, while simultaneously blaming his opponents for anything he's done wrong! Score!

Animale

[Sueven]

I largely agree with what Kilmoll is saying about the 2nd amendment, but that's neither here nor there.

Kilmoll's arguments demonstrate the difficulties of interpreting the Constitution, and how silly it is to assume that there is one particular reading which is natural or correct to the exclusion of all others.

The interpretation provided-- focusing on the policy behind the Amendment, and tying the meaning of the Amendment to history and texts which are not themselves legal sources-- is not at all a strict constructionist method of interpretation.

Side note: It seems a little bizarre that you would observe the army training to attack US civilians-- the army which has been under the control of Bush as commander in chief for 7+ years now-- and somehow draw the inference that we should be afraid of Obama (who is specifically not Bush). But can we keep this conversation in the Obama thread if we want to have it?

[Noysyrump]

Bush is NOT a conservative strict constitutionalist. He is a career polotitian who comes from a family of career polotitians. Trust me, we conservatives dislike him for many reasons. (wich is of course why we disaprove of McCain's nomination.)

[Sueven]

Bush is also not a JUDGE.

[Kilmoll the Sexy]

Side note: It seems a little bizarre that you would observe the army training to attack US civilians-- the army which has been under the control of Bush as commander in chief for 7+ years now-- and somehow draw the inference that we should be afraid of Obama (who is specifically not Bush). But can we keep this conversation in the Obama thread if we want to have it?

Apaprently this actually goes back over a decade and would have been started in Slick Willie's administration. I would have to research it more but it was at some point in the 90's. My fear is mainly in a man who would remove the defense of the people in the face of all that is going on today in this country.

[Noysyrump]

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Shit on that, you know with mandatory national health care or something.