Limits? What Limits?

Avatar

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

Related Post Roulette

143 Responses

  1. Avatar greginak
    Ignored
    says:

    Killer post Mark. I think i tried to make a similar point, although i did it in three quickly written sentences so it may have been less…umm..persuasive. I think your contention the is up to people through the democratic process to , within the constraints of the The Big C, to bring about the republic they want is exactly correct. It also leads to how facepalming so much of the TP/Repub view as a holy document that clearly proscribes their exact view is. So many of those words like unreasonable and excessive are inherently based on the time we live in. They surely didn’t throw in Bork’s inkblot, the 9th, because they thought ever single freaking detail was already exactly specified.

    I may have missed something at my local cell meeting but has it been determined that liberals don’t believe there are any limits to what the gov can do?

    I have no doubt the Founders would rightly confused about a lot of our Gov. I would guess many would think we have to much, although i might also guess the standard complaint about the F’s being of a rather smallish, pale, privileged group would be directly pertinent. But also a few founders would also say something like “dudes its your country now, you figure out, do you seriously think we could f’ing predict how to exactly run a country 200+ plus years in the future.”Report

  2. Avatar Michael Drew
    Ignored
    says:

    Wow, Mark. Holy crap. I want to give you full credit that these thoughts may have been close to your view all along, or in some other sense percolating, even though you say there’s been some evolution. I don’t want to highlight or nitpick any part of this, because a) I am not qualified to, b) it all stands on its own (much like the Constitution itself come to think of it!), and c) it says nearly everything on the subject that I think needs to be said. I hope this gets read as widely as it should. Whether this represents significant evolution (which would in turn be even more commendable), or not, I have to just tip my hat to the sensibility, and if it applies at all, braveness of this post. Though I am not really qualified to say that something you write on these questions might be of higher quality than something else you might have written, nevertheless bravo. If I had a post like this in me, this is (as was the post on Wikileaks) the one I would have aspired to write.Report

    • Avatar Michael Drew in reply to Michael Drew
      Ignored
      says:

      Notwithstanding any of that, however, I would be interested in your account of how to reconcile a view of the Ninth and Tenth Amendments as libertarian guarantees of unnamed personal rights and sub-federal autonomy with a view of the power grants in the main body and elsewhere that takes them as at least somewhat vague and subject to having their meaning constructed by politics, and not as very specifically enumerated and limited by their own terms, whether read in conjunction with 9A & 10A or just on their own. I don’t disagree that those Amendments are libertarian, and yet I also think the views I just laid out are reconcilable, so this is obviously not a challenge to the post. Rather, I am just curious as to your specific view about how these interact, since many accounts of how they reconcile are possible.

      Perhaps your view is that, while in your own private accounting 9 & 10 do force a libertarian interpretation on the rest of the document, and a view of the grants of federal power as strictly enumerated, you are nevertheless simply embracing an indeterminacy of meaning based on actual disagreements at the time of ratification along with the fact of popular pluralism around the question today. I’d respect that answer as much as any other, though I suspect you have something more involved and text-based than that view in ind in addressing this tension.

      Once again, great post.Report

      • Avatar Mark Thompson in reply to Michael Drew
        Ignored
        says:

        Thanks, Michael. I think by far the most supportable way of interpreting the 9th and 10th Amendments is, with respect to the former, something akin to a “fundamental rights doctrine” that could evolve over time to include more rights than those enumerated and understood at the time.

        The 10th Amendment, and here I’m speaking much more off the cuff, is a safeguard against tyranny. I could probably put forth an argument along the lines that the phrase “powers not delegated to the United States by the Constitution” implicitly means “powers not delegated to the United States by the Constitution as understood by the people and the States at the time…” But that would require an amount of research that I won’t have the time for anytime soon.Report

        • Avatar Michael Drew in reply to Mark Thompson
          Ignored
          says:

          My first blush take on the Tenth actually doesn’t cut that much for libertarianism either: it seems to me that it’s saying that whatever powers the federal government may not have under the Constitution may nevertheless be claimed by the states or by “the People,” (in yet smaller organized governmental units) – i.e. as opposed to the people being free of any powers at any level that the Constitution also forbids to states. In that sense sense, then, it seems that the Fourteenth Amendment could be seen to partially correct an illiberal grant of power by the federal Constitution in the Tenth to the States in a concession by proto-Federalists not to individual rights but to advocates for States’ power. This is anti-federalist, but not libertarian.Report

  3. Avatar Koz
    Ignored
    says:

    I think you were probably right the first time.

    Are you familiar with Raoul Berger, Mark? He wrote quite a bit about this. In particular, there are two things that can significantly clarify concerns like yours.

    1. Where there is legitimate back-and-forth over the best place to draw a line, pick what looks to be the most reasonable place and draw it there.
    2. Where there is significant contra-textual difficult-to-unravel jurisprudence over the course of precedent, quit adding to it.

    Then, once the patient is stabilized, we can actually go about curing the disease.

    I do agree with you that the Constitution is not necessarily a libertarian document. It specifies the foundation for a limited government, which is not the same thing as libertarianism, much to the dismay of libertarians.

    Also, I think that Larry overstates his point. The current debate over the Constitutionality of the health care bill is a case in point. Constitutionalism and political activism are complementary, not substitutes. Enthusiasts of limited government should support both.Report

    • Avatar Mark Thompson in reply to Koz
      Ignored
      says:

      1. Where there is legitimate back-and-forth over the best place to draw a line, pick what looks to be the most reasonable place and draw it there.
      2. Where there is significant contra-textual difficult-to-unravel jurisprudence over the course of precedent, quit adding to it.

      I have no problem doing this, but the point is that there’s never going to be any more evidence for my concept of “reasonable” than there will be for someone else’s concept of “reasonable.” It is important to recognize this, even if one doesn’t like it.

      It specifies the foundation for a limited government, which is not the same thing as libertarianism, much to the dismay of libertarians.

      Without getting into the latter half of this sentence, I can’t say that the first half of the sentence has any more evidence for it than the contrary position, much to my chagrin. The Bill of Rights, on the other hand, most certainly provides a basis for limited government.Report

  4. Avatar Herb
    Ignored
    says:

    Good post. But I have to say, when I read stuff like this: “…Constitution permits Congress to require individuals to purchase a private product for no reason other than being alive.”

    I must ask, “Why should I trust a Libertarian’s interpretation of the Constitution, if I can’t even trust their description of legislation passed last year?”Report

  5. Avatar Michael Drew
    Ignored
    says:

    Also… look for this post to add data supportive of the recent “Hypothesis.” Or not. We’ll see.Report

  6. Avatar Jason Kuznicki
    Ignored
    says:

    I don’t agree. You will get accolades for the liberals for this post, and you already have, but it does violence to the plain meaning of the original, unamended constitution.

    Deny it all you like (and I’m dismayed to see you among the deniers), but the powers of Congress are enumerated. They are not plenary.

    To find a grant of plenary power in what is clearly a restraint on the taxing power (the general welfare clause) or, worse, to find such a grant in the preamble, makes a mockery and a waste of the rest of Article I, section 8. The document can’t have been written this way by any reasonable person. The founders were reasonable, and therefore it wasn’t.

    We may very easily find ourselves with a government that overruns its constitutionally granted powers. This is not a fault of the Constitution, but of the government, and possibly of the people, even if spitting on some old piece of paper might seem like the easier course.

    LarryM is right on one thing — we do need to convince the people of the goodness of limited government. My sense is that they are becoming aware of it, at least recently, and I hope they will continue to do so.Report

    • Avatar MFarmer in reply to Jason Kuznicki
      Ignored
      says:

      I had the same reaction as Jason — yes, liberals will agree, but libertarians will look to the philosophy behind the Const — the Declaration of Independence. This is a good liberaltarian position, but not libertarian.Report

    • Avatar Francis in reply to Jason Kuznicki
      Ignored
      says:

      But the Constitution changed radically with the adoption of the 14th amendment. And the public’s perception of the Constitution and the federal government changed radically again as a result of the Great Depression and WWII.

      And the idea that the federal government truly has plenary powers is really silly. It is a dual sovereign with the states, and leaves vast areas of the law to the states.Report

    • Avatar Freddie in reply to Jason Kuznicki
      Ignored
      says:

      Is getting accolades from liberals such a bad thing that you make it your first concern?

      I think, with time, even you could find your reasoning trivially invalid. What is reasonable is debatable. Whether the Founders were reasonable is debatable. (Ask a slave. Or a woman. Or an American Indian.) What the specific passages you refer to mean is debatable. Here we are, debating it. When you stamp your foot and declare certain things plain, or obvious, or clear, or whatever else, you are merely dressing up argument by assertion.

      Does the Constitution give government the right to use unmanned drones? How could it, when such a thing couldn’t be dreamed of by the most imaginative Founder? Does the Constitution grant us the ability to divvy up the wireless spectrum so that there is such a thing as wireless communication? How could it possibly, since the Founders not only had no such thing, they didn’t even have any reasonable antecedent for such a thing? Will the rules and rights enumerated in the Constitution extend to our colonies on other planets? Could you possibly say that they could, given that such a thing could not possibly be considered a serious question for an august body such as the framers of the Constitution?

      Some will say “those specific things are not enumerated, but we can extrapolate/their broad categories/the same fundamental ideas/clearly this section gives Congress the right/obviously that would fall under this clause….” It is always the same in these arguments: everything is crystal clear to the man who is speaking his agenda. Why should the use unmanned drones or space flight be meaningfully extrapolated from the document, but not the application of a desperately needed health care overhaul? I know, I know– you think it’s obvious. Everything within the document that supports the America you imagine is obvious. Every other reading, including the reading that recognizes that was the Founders’ intent that the document evolve, is some spurious dishonesty intended to lead us down the road to serfdom.

      When I mention slaves or women or American Indians or simply those too poor to be granted a vote in early America, I’m sure there will be eye rolling; I’m sure some will see it as a typical lefty breaking out the litany. But you will surely agree– such people were denied rights so basic and so necessary that no one would now deny them. How can you reconcile this with the purity of your ultra-originalist reading? Going back in history does not suddenly make any unfortunate position on issues of minority rights defensible. There were suffragists at the time. There were abolitionists. Hell, there were people working on drafting the Constitution who wanted anti-slavery language written in! But some of these brilliant Founders who we worship like secular deities were desperately committed to the perpetuation of an unconscionable regime of slave labor. Including Thomas Jefferson. Including George Washington. They weren’t just a product of their time; they weren’t just in need of more education. They were wrong. They were desperately wrong, and thank god, we as a culture and a polity recognized that and allowed the need for change to overwhelm our sanctity for the document. Nobody mistakes the abolition of slavery for a situation of dueling interpretations. The document was simply a racist, slavery-affirming document. Original intent is no panacea.

      Would you like to talk about gay rights? Do we really need to wonder, here? I think you’ll admit: gay marriage would have been seen, in historical context, as an abomination. There’s no consideration of such a thing because the very idea of gay rights was so absurd at the time that there was no need to explicitly write them out of the document. Could you imagine that George Washington would want gay men and women serving in the American military? He was wrong. If we have to preserve the original meaning of the document, we have to preserve, with ruthless honesty, the philosophical perspective of those who wrote it. Even when they were totally wrong.

      No, we’ve just recently won gay men and women the right to openly serve. More specifically, liberals won it. It doesn’t take some grand counterfactual to imagine the alternative; the other guy in the last presidential election is the single most vocal and ardent opponent of the rights of gay soldiers, and he would have had the veto stamp. Meanwhile, liberals are slowly and arduously winning the right of anyone to legally marry anyone else. I cannot imagine a serious argument that this would have met with the blessing of the authors of the Constitution. I don’t care.

      You’re right, you know; libertarian ideals are more prevalent and more influential than they ever have been before. So take some advice from someone who will never get what he wants: take yes for an answer. I cannot understand the reflexive libertarian tendency to act more and more marginalized as you become more and more successful. As mainstream liberals accept more and more in the way of libertarian rhetoric, I hear more and more about the road to serfdom. Take a note from your more measured colleagues. Understand that even in their most wild-eyed fantasies, people like Ezra Klein and Matt Yglesias and Jon Chait don’t imagine anything resembling genuine socialism. Chuck Schumer and Harry Reid are not slowly maneuvering us towards some dystopian socialist nightmare. The more that you complain that they are, the less your complaints can possible mean.

      When minority discourses find themselves growing successful, they face tough choices. But you don’t have to maneuver the good ship libertarianism yourself. Just ask: is it possible that Mark is a libertarian and believes all of the things that he’s written in this post? And can you really say that you read the Constitution with so much greater access to the truth?Report

      • Avatar Mike Schilling in reply to Freddie
        Ignored
        says:

        Is getting accolades from liberals such a bad thing that you make it your first concern?

        Terrorists can merely kill us — liberals destroy our souls by giving us health care and a moderately comfortable retirement.Report

      • Avatar MFarmer in reply to Freddie
        Ignored
        says:

        All you are saying is that the Const was imperfect document that included an amendment process which has not been used nearly enough to keep up with the times and provide clarification going forward. None of the orginal mistakes nor the influence of Merchant-statists like Hamilton have any bearing on what we should do now knowing what we know. I think there should be another Constitutional Convention to battle once more over limitations, because that would be better than a relative few in government making it up as they go along.Report

        • Avatar Mark Thompson in reply to MFarmer
          Ignored
          says:

          None of the orginal mistakes nor the influence of Merchant-statists like Hamilton have any bearing on what we should do now knowing what we know.

          Yes, but that does not mean their mistakes and interpretations can just be assumed out of existence when we try to interpret the Constitution today, just as the contemporary interpretations that are favorable to the libertarian position cannot simply be assumed away.Report

          • Avatar MFarmer in reply to Mark Thompson
            Ignored
            says:

            If after we read the Constitution and all its amendments, the DoI, the Federalist papers and all the other literature of that time, and we still are confused as to what it limits and allows, then we need to have another Constitutional Convention to clarify, otherwise the people in power will interpret it to accomplish their goals — if this is the reality, then we don’t even need a Constitution, just a general outline that we will try to fair and stuff. However, it’s only a couple of clauses that have been the problem — if we simply clarified the interstate commerce and the common welfare clauses, this would help tremendously. I think a lot of people are being disngenuous, if they have read all the contextual literature conected with the Constitution — it presents a pretty clear picture — and the amendment process is for changes through time that they couldn’t foresee, or hings they didn’t want to deal with at the time.Report

            • Avatar Michael Drew in reply to MFarmer
              Ignored
              says:

              But if we did that right now, based on the revealed preferences of the American electorate, I’m not sure it would come out the way you’d like. Are you cool with that?Report

            • Avatar Mark Thompson in reply to MFarmer
              Ignored
              says:

              I have no objections to a Constitutional Convention, although I’m certain it would not result in anything resembling my ideal, and would almost certainly reinforce virtually all of existing precedent, as well as being the final nail in the coffin for Lochner. I do not see the American people being willing to go along with the short-term chaos involved in completely and simultaneously overturning 80 years of the welfare state and regulation affecting virtually every aspect of the economy.

              Regardless, I am quite certain you have not read all the other relevant literature of the time, because I’m quite certain no one, or at least almost no one has. Much of it is certainly lost to history to begin with, and that which remains is incredibly voluminous. Moreover, we need to recognize that the terms we are most concerned with here are incredibly vague and unspecific – and probably intentionally so, because if they made them too specific, then they wouldn’t have been able to put together a deal capable of obtaining passage at all.Report

            • Avatar Mark Thompson in reply to MFarmer
              Ignored
              says:

              One more thing – included in any review of source literature beyond the four corners of the Constitution has to be the works of the anti-Federalists. Otherwise, you’re only getting a sugar-coated interpretation of what the Constitution meant to the people at the time. The anti-Federalists should not be the sole arbiters, to be sure, but their voices are every bit as relevant to understanding how the text was understood by the people voting for it as are the voices of the Federalists.Report

              • Avatar MFarmer in reply to Mark Thompson
                Ignored
                says:

                So, you are saying there is no way to determine what the Founders were attempting to accomplish by the Constitution — and others are saying that the Constitution would now be changed to something much different, so the Constitution is irrelevant as a guiding document limiting the powers of government?Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                It is not irrelevant, not in the slightest. The words still have meaning, even if we don’t agree on what exactly that meaning entails. But trying to figure out the specific details of what that meaning entailed for the Founders is a fool’s errand, because the answer is that it entailed as many different meanings as there were Founders.

                Is there any way to determine what the Founders were attempting to accomplish? Absolutely. As with many agreements, the answer of what they universally agreed was their intent is to be found in the preamble. That, after all, is why preambles exist.

                Again, the easiest way to sum up this post is to simply say this: Patrick Henry was right.Report

              • Avatar MFarmer in reply to Mark Thompson
                Ignored
                says:

                So, do you believe we should stick to the original intent (plus the amendments) as you understand it?Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                The point is that there is no original intent beyond that expressed in the preamble.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                There’s no intent after the preamble? If there was no purpose in the rest of the document then why was it written — it clarifies and explains the intent of the preamble — that’s the intent.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                Do you really want to say that the Founders had no shared purpose in writing what follows the preamble? That they didn’t intend to limit the powers of government?Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                The shared purpose in what follows the preamble is the means of executing their goals, no more, no less. There is no intent to achieve anything beyond the stated intent. You will not find a single direct expression of intent to generally create a limited government anywhere in the main body of the original Constitution. If I am wrong, then please cite one. So far as I am aware, the only limitations on Congress in the main body of the Constitution are the very specific and highly uncontroversial provisions in Art. I, Sec. 9.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                It will be interesting to see what happens going forward, if America allows the egalitarian/social justice forces to continue to restrict enterprise, some of our most productive citizens/companies may just find enclaves throughout the globe to operate, leaving America to degenerate into a another statist failure. The progressive goals are built on the assumption that producers will continue to produce and feed revenue to the government to redistribute, but mobility is increasing rapidly. Some are talking about sea-steading, but some small countries could offer free-zones and protection for a fee, thereby sucking production and wealth out of America. If the most productive and innovative and free-spirited begin to feel they are being drained dry and controlled to the point it makes no sense for them to continue here, they will look for alternatives. Now, I’ll wait for all the John Galt jokes. But, it’s already happening to limited degree — things are changing fast. If I lived in New Zealand and had any influence, I would recommend the creation of a protected free-zone and charge rent. If America wants to keep her most innovative and productive, she should trust their charitable spirit and ingenuity, let them operate freely and quit commanding and taking without asking. If we trust the American people, we don’t need much government, just an efficient government that performs its limited duties of protection and dispute resolution.Report

              • Avatar RTod in reply to MFarmer
                Ignored
                says:

                “Now, I’ll wait for all the John Galt jokes.”

                Why did John Galt cross the road?Report

              • Avatar Mike Schilling in reply to RTod
                Ignored
                says:

                To avoid paying the confiscatory bridge toll.Report

              • Avatar Jaybird in reply to RTod
                Ignored
                says:

                Who is John Galt?Report

              • Avatar Mike Schilling in reply to RTod
                Ignored
                says:

                Who is John Galt?

                Yes.

                I mean the fellow’s name.

                Who.

                John Galt?

                Who.

                I’m asking YOU who’s John Galt.

                That’s the man’s name.

                Costello: That’s John Galt’s name?

                Yes.

                (etc.)Report

              • Avatar RTod in reply to MFarmer
                Ignored
                says:

                Just because people interpret the Constitution differently, or that those interpretations change over time, does not make it irrelevant to the governance of the country – any more than saying there is no one correct way to interpret Bible makes it irrelevant to Christians. (…he said, waving the red meat for Bob.)Report

              • Avatar MFarmer in reply to RTod
                Ignored
                says:

                But to say it’s relative to the different interpretations goes a long way towards making it irrelevant. Relativity is not good for a document intended to limit government.Report

              • Avatar RTod in reply to MFarmer
                Ignored
                says:

                I think for a commune of 100 people for the next decade, I agree. I think for a country of hundreds of millions over hundreds of years, it’s what allows it to continue to be relative.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                Then it can mean anything to anyone? And if whichever party in power interprets it to mean one thing and acts accordingly, that is fine?Report

              • Avatar RTod in reply to MFarmer
                Ignored
                says:

                “Then it can mean anything to anyone?”

                No, actually. The freedom of speech cannot mean you have to wear a duck on your head. But I think you have to recognize that issues of government and freedom are not always Yes/No issues.

                It wasn’t that long ago (late 1960s) that in my town of Portland, if you were black there were parts of the city you could not live. We Portlanders didn’t come to a consensus to change that, the federal government mandated a change. So which side in the debate was convinced (sincerely, not just trying to get by on a clever legal maneuver) that their personal Constitutional freedoms were being wickedly withheld by the other side? The answer, of course, was both. And let’s face it, both had perfectly good Constitutional arguments to back themselves up with. So I think that Mark is correct when he says that believing that there is one pure original intent answer is a fool’s errand.Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                Relativity is not good for a document intended to limit government.

                You keep using the phrase “intended to limit government.” This assumes far too much – what, in the main body of the Constitution itself, suggests that it is “intended to limit government”? More importantly, if we really must get into assumptions of intent, then it quickly becomes clear that the Constitution was in fact intended to expand government. I don’t think there’s any debate that, even under the narrowest of interpretations, the Constitution provides the federal government with far, far more power than it had under the Articles of Confederation. We don’t even need to go outside official documents to reach that conclusion; instead, we can just compare the Articles of Confederation with the Constitution. And of course the preamble itself sets forth quite specifically that its intent is to create a more powerful federal government – to “form a more perfect Union,” “promote the general welfare,” etc., etc.

                The intent of the document is one of the few things that is fairly directly stated, albeit in ambiguous terms. It does not begin “in order form a more limited government,” or anything of that nature, but rather begins with a litany of items establishing its intent to create a stronger government.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                But surely the listing of powers is also intended to limit powers. Otherwise they would say we will do whatever we deem necessary to form a stronger government. The DoI shows an intent to limit the power of the government to certain described powers, opposed to the britain they broke off from. What you are attempting here is obscurantism.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                RTRod, but let’s stick o interpretation — what you are saying that it can be interpreted differently by different people, different political parties at different times. Then we are at the mercy of a relatively small number of politicians and their interpretation — this is what the Founders wanted to avoid. You can’t say it’s open to interpretation without also realizing that this can be used by power-seekers in government to enhance the power of the State and reduce the liberty of the American people– the Constitution is supposed to prevent this by limiting what government can do. Government is supposed to uphold the Constitution, not interpret it to achieve State purposes.Report

              • Avatar RTod in reply to MFarmer
                Ignored
                says:

                Mike, that may well be true. But it seems to me that that is an inherent flaw in any type of government. I still maintain that you can draw up a new document – Hell, you can do it yourself – and once in place, it will be interpreted in a number of different ways. And I think that’s a good thing, because the only way I can think of to have a governing system where there is no room for disagreement of interpretation is having a system where one guy gets to make all the decisions.

                I actually like our current system, where the congress can’t circumvent the Supreme Court (for long, anyway), and if the capital-P People want substantive change they can have it whenever they want it (at least within a year or so). Saying that I don’t like the way the people are voting or their priorities, so I want to change the system to make it different for their own good – that’s the type of thinking that makes me wary of liberalism.Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                Yes, it enumerated specific powers. But it did not define them and used extraordinarily vague language to enumerate them. And it then adds an even more vague clause that states that the government also has the authority to do whatever is “necessary and proper” to achieve the ends previously described.

                Given the wide array of possible interpretations of those vague grants of power, what evidence is there that one interpretation is inherently superior to another?

                I keep asking this question on this thread, and have yet to receive an answer: whose set of definitions controls? Hamilton’s, Madison’s, Henry’s, or someone else’s? The point is that they all had different ideas as to how these vagaries could and should be interpreted, ranging from narrow to broad, with the broad obviously fully encompassing the narrow.

                I am not saying that a narrow interpretation is inherently wrong. I am saying that there is equal evidence for broad interpretations as there is for narrow interpretations.

                Put it this way – if there was an agreed intent that the grant of powers should be interpreted narrowly, it would have been exceptionally easy to insert a rule of construction into the text of the Constitution itself saying no more than “the powers defined and granted herein shall be interpreted narrowly.” The closest we have to that are the 9th and 10th Amendment, neither of which say anything about how to construe any individual grants of powers, except to say that they are the government’s only powers, and that the enumerated rights of the people are not the only rights possessed by the people.

                The point is that, although I most certainly prefer a narrow interpretation, and think that a narrow interpretation is entirely reasonable, there is simply no way to conclusively and objectively prove that it is more reasonable than a broad interpretation.

                And there’s more than that, as well, because the spectrum between “broad” and “narrow” includes innumerable degrees in the middle.

                Moreover, if we take a look at where we are now, and how the federal government has evolved over the last 220 years, and then we take a look at the people who most feared the Constitution…..well, don’t their fears seem remarkably prescient?Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                Then we are at the mercy of a relatively small number of politicians and their interpretation — this is what the Founders wanted to avoid. You can’t say it’s open to interpretation without also realizing that this can be used by power-seekers in government to enhance the power of the State and reduce the liberty of the American people– the Constitution is supposed to prevent this by limiting what government can do.

                It is not what “the Founders” wanted to avoid. It is what some Founders wanted to avoid, most prominently the Founders who opposed the Constitution. This is not something to be ashamed of – I will take just about any anti-Federalist over Alexander Hamilton any day of the week and twice on Sunday. And I know you would, too.

                And there is a part of the Constitution that limits what government can do in a meaningful way: the Bill of Rights and the post-Civil War amendments. The case that those are a basis for limiting government is unassailable, and they exist precisely because the primary objection to the Constitution was fear of tyranny. It is they which are the main bulwark of individual freedom and liberty; there is ultimately a more historically supportable Constitutional case to be made for bringing back Lochner than there is for a narrow interpretation of Article I.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                “Mike, that may well be true. But it seems to me that that is an inherent flaw in any type of government. I still maintain that you can draw up a new document – Hell, you can do it yourself – and once in place, it will be interpreted in a number of different ways. And I think that’s a good thing, because the only way I can think of to have a governing system where there is no room for disagreement of interpretation is having a system where one guy gets to make all the decisions.”

                So you are basically saying there are no limitations to what government can do, because we can never agree on the intent of the words in any Constitution devised.

                I disagree. I think the wording can be corrected to plug loopholes. The commerce clause has been cynically perverted to expand State power — it can be cleared up by stating the implied purpose — to prevent states from obstructing trade between states. It can be cleared up easily. There are gray areas that the court would have to decide on in case of dispute, but all reasonable people who understand the philosophical foundation of the Const can discern when the Constitution is being violated — and if government purposefully violates the Constitution, there is a suggested remedy for that too — withdraw consent, dismantle and change governments.

                What you and Mark are proposing is a government of ad hoc convenience in which the State holds all the power and we are at the mercy of the State, hoping they don’t interpret tyranny into their plans. You might like this arrangement, but I don’t think the majority of Americans will when they fully understand what’s happening — and more and more people are paying attention — they never thought they’d have to, but they are now, and realizing how far we’ve drifted –you might like it, until an authoritarian party gains power during a blown-up crisis and starts implementing their Plan for Stability and Security.Report

              • Avatar RTod in reply to MFarmer
                Ignored
                says:

                “Moreover, if we take a look at where we are now, and how the federal government has evolved over the last 220 years, and then we take a look at the people who most feared the Constitution…..well, don’t their fears seem remarkably prescient?”

                Count me as someone who answers: “No.” In 220 years, we’ve taken the germ of an idea bout freedom and equality and greatly expanded it farther than I’d bet anyone at the time ever dreamed (or feared): slavery is gone, women are allowed to vote and hold jobs, we let Jews control their own companies without freaking out about it and a black man is the President. We are so successful, financially speaking, that we grumble that times are so tough we might have to put off buying the new iPad for another year. We are allowed to openly criticize, assemble against, and even plot the downfall of today’s leaders (and today, on this sight, even the Constitution!) to an extent that was unheard of in the early 20th century, let alone the early 19th. Our life expectancy is more than double what it once was, and even though I hate the social security system and thin it needs a good fixxin’, I have to admit that most of our elderly live on their own means (that is, not having to be dependent on their kids) when they wish to without being subjected to abject poverty. Those of us who don’t own our own companies now don’t need to worry that every year X number of us in our plant will be killed or dismembered. And we make a far better martini than any other country in the world.

                I am on board with everyone else with wanting to curb government intrusion, and keep improving on our way of life. But this sense I often get here and elsewhere that we live in some third world fascist/socialist oligarchy a month away from losing 25% of our population to starvation or gulags – people, you might want to take a step back and get some perspective.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                So Mark, some aspects are clear and some aspects have to be interpreted. The general welfare clause — what limitation is placed on that? You are basically saying that the government can intervene in the economy and with our property in any way interpreted, but the basic freedoms like freedom of speech, cruel and unusal punishment, search and seizure, these are crystal clear — but the government is not limited in how it interprets the interstate commerce clause and the general welfare — This is convenient for someone who supports a strong statist government, but for someone who values economic freedom and free market, it looks like a rigged game to me. Nothing in the Constitution gives the government the powers it has grabbed to regulate a free market — you just want to believe it’s not prevented from doing so because certain clauses can be interpreted a certain statist way — no, I don’t think so — the government has not been granted the power to limit our economic freedom. What you can’t see is that when government has the power to interpret how it can limit our economic freedoms, then the other basic rights are practically meaningless.Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                What you can’t see is that when government has the power to interpret how it can limit our economic freedoms, then the other basic rights are practically meaningless.

                I disagree. I see this perfectly clearly (well, I wouldn’t say practically meaningless since the Bill of Rights and 14th Amendment has successfully stopped a number of infringements on liberty) .

                Which is why, in 1789, I am quite certain I would have been an anti-Federalist. And you would have, too.

                The problem isn’t that I want the Constitution to be this way. The problem is that the people who wrote it and voted for it weren’t libertarians. Indeed, some not insignificant percentage of the people who voted for it were almost certainly Tories. Remember, for many of the Founders, the big problem with Britain wasn’t simply taxation, it was taxation without representation. Once the war was over, they had representation. They just needed to find a way to get the power to do something with it.Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                @RTod: Count me as someone who answers: “No.” In 220 years, we’ve taken the germ of an idea bout freedom and equality and greatly expanded it farther than I’d bet anyone at the time ever dreamed (or feared): slavery is gone, women are allowed to vote and hold jobs, we let Jews control their own companies without freaking out about it and a black man is the President.

                While that is indeed wonderful stuff (thanks, 14th Amendment!), that doesn’t mean the fears weren’t prescient – for one, none of those has much to do with the fears of the anti-Federalists, or at least the fears I’ve cited, and second, to the extent they do have to do with the fears of some anti-Federalists, the fact that such fears were fears of unqualified good things does not mean that the fears were not prescient.

                I’m not trying to imply that things are terrible in this country or that we live in an actual tyranny. The point is just that the Constitution turns out to be capable only of, at most, slowing the expansion of government power, and incapable of limiting it (and really did not intend to limit it all that much). There are three reasons we do not live in an actual tyranny:
                1. The anti-Federalists were at least partially successful insofar as they managed to get the Bill of Rights; and
                2. Despite everything, the first three words of the preamble remain the most important. The government’s powers may have surprisingly few limits imposed by the Constitution, but we still ultimately live in a representative democracy; and
                3. Separation of powers. While the Constitution does little to impose formal limits on the government as a whole beyond the Bill of Rights and post-Civil War amendments, it puts a tremendous amount of gum in the works by forcing everything to go through 3 elected (whether direct or indirect) bodies, and then setting up an independent judiciary. That is not a de jure limit on the powers of government, but it turns out to be a magnificently strong de facto limit.Report

              • Avatar RTod in reply to MFarmer
                Ignored
                says:

                Geez, Mark… Ruining a perfectly good snit with a measured response.

                And actually, we agree…Report

              • Avatar Scott in reply to RTod
                Ignored
                says:

                Just because folks interpret the Constitution differently, you mean like the shall not be infringed part? It just goes to show how far folks have sunk when words seemingly do not have their plain and obvious meaning after the Founders carefully chose them. I would also that that just because we, today do not understand the words they chose, it is not a fault of either them or the document.Report

              • Avatar Mark Thompson in reply to Scott
                Ignored
                says:

                And what if they themselves didn’t actually agree on what the words meant?Report

              • Avatar RTod in reply to Scott
                Ignored
                says:

                The Founders, in the 1790s, famously jailed citizens and press editors who were critical of the federal government at that time, under the auspices of the Alien & Sedition Acts. Did they not understand themselves or the document?Report

              • Avatar Scott in reply to Scott
                Ignored
                says:

                RTod:

                I can’t speak to what Adams felt about the constitutionality of the Sedition Act. The Alien and Sedition Acts were not appealed to the Supreme Court for review but maybe they should have been. IMHO Adams should have known better but may simply have not cared as the US was at war.

                Mark:

                At some point they had to settle on a word choice to express the ideas they were trying to communicate, which is to say at some point each word had to have a final and fixed meaning.Report

              • Avatar Mark Thompson in reply to Scott
                Ignored
                says:

                And which meaning would that be? Would it be the meaning alleged by Patrick Henry? That alleged by Hamilton? That alleged by Madison? And so on. Generally speaking, when writing up an agreement (which is ultimately what a constitution is), if you want to give a word a specific and narrow meaning, you define it rather than leave it undefined. And the thing is that there’s evidence that they knew it was all very vague and ill-defined – that vagary and ill definition was the basis for a lot of the opposition, and ultimately was why the opposition was so insistent on a Bill of Rights (and why certain proponents were so opposed to a Bill of Rights).Report

              • Avatar RTod in reply to Scott
                Ignored
                says:

                Scott:

                My point was simply that it is folly (or mythology) to think we know what the FF meant, and that it is the same that we mean. The A&S act is s good example: I’m going to bet that no conservative or libertarian today (myself included) is going to agree that the Bill of Rights allows the Executive branch the right to jail people who are critical of them. But less than a decade after the BIll of Rights ratification, it was deemed OK to do so – by the some of same people who both supported and ratified it.

                The Bill of Rights language hasn’t changed in 220 years, but our interpretation of it – even we libertarians and conservatives – is different.

                And, certainly in this case, that’s a good thing. Otherwise this blog might not be allowed to exist.Report

              • Avatar MFarmer in reply to Scott
                Ignored
                says:

                Mark, do you understand what the words in the Constitution mean? I mean do you have a good idea what the Foundrs intended, and if so, what is that? To do whatever is necessary for the welfare of the people as the government officials deem appropriate, or to work within the powers granted to them – does any part of the Constitution allow government to do whatever it deems necessary to do? Are there no limits? If government is limited, then why? What limits the power of government?Report

            • Avatar James Vonder Haar in reply to MFarmer
              Ignored
              says:

              I have to disagree that the accompanying literature presents a pretty clear picture of what the founders, as a group, intended for the constitution. The only thing clear that I’ve gotten from the federalist papers, prominent anti-federalist writings, and notes on the constitutional convention for certain is that much of the language concerning limited or powerful government was made vague as a compromise. Some of those more wary of the constitution were brought over to support it by the enumerated powers, but you can bet your ass Hamilton and Madison were at least hoping that the general welfare clause (no one paid much attention to interstate commerce at this point) would be interpreted as expansively as possible.

              In other words, like all good politicians they punted a difficult decision down the road in the interests of getting a compromise now. The founders never spoke with a single voice on whether they wanted an expansive or limited government.Report

              • Avatar MFarmer in reply to James Vonder Haar
                Ignored
                says:

                “The founders never spoke with a single voice on whether they wanted an expansive or limited government.”

                Well, we can, and need to, unless we’re determined to destroy yet another Republic. The ambiguity and weasly interpretation of the welfare clause are evidence that some intended to get around limitations, but it’s not what the majority had in mind when claiming a set of priniciples — The DoI attests to the principled intent regardless of the Merchant-Statists who wanted to deceive and favor the bankers, elites and landed interests. Anyone defending the Hamiltonians are defending cronyism, elitism, a Merchant State and deceit.Report

              • Avatar MFarmer in reply to MFarmer
                Ignored
                says:

                The idea that an elite few in positions of State power should provide for the welfare of the many is antithetical to the American spirit of self-sufficiency, entrepreneurship, innovation and economic freedom. The spirit of charity, associations and organizatios to provide needed assistance to those in need have been killed by statists who create dependence and, therefore, control by power elites. This is the American dream?Report

              • Avatar Mark Thompson in reply to MFarmer
                Ignored
                says:

                This is a much better argument, which does not require relying on unprovable argument about what the Constitution says or is intended to say.Report

        • Avatar E.C. Gach in reply to MFarmer
          Ignored
          says:

          I agree M. I’m tired of the courts papering over the Constitution with legalese in order to de facto amend parts of it that didn’t change with the times. We don’t have nearly enough Constitutional Conventions.

          I’d love to have one of them over a cherry picked reading on the House floor.Report

        • Avatar Jaybird in reply to MFarmer
          Ignored
          says:

          I keep saying that I would like a Constitution that reflects what the Government is honestly limited from doing and what it honestly is required to do and where the grey areas are.

          For my part, I am bothered far more by a 2nd Amendment that doesn’t mean anything even close to what it plainly says in practice than the idea that I’m only allowed to own what my community standards say is acceptable.Report

      • Avatar Dave in reply to Freddie
        Ignored
        says:

        I cannot imagine a serious argument that this would have met with the blessing of the authors of the Constitution. I don’t care.

        The text of the 14th Amendment will do just fine as well as the legal principles espoused in cases like Lawrence v Texas and Romer v Evans. They pre-date the modern liberal interpretation of the Fourteenth Amendment (i.e. the horrific fundamental rights analysis) and have roots in the 18th century interpretation of the state police power, one that pre-dates the 14th Amendment.

        Randy Barnett justifies these cases on originalist grounds in Restoring the Lost Constitution. He would also tell you that what the authors think about certain rights, real or imagined, is irrelevant.Report

      • Avatar North in reply to Freddie
        Ignored
        says:

        This is really quite a good comment Freddie, good on ya.Report

      • Avatar Mark Thompson in reply to Freddie
        Ignored
        says:

        I’ll be the third to co-sign with Michael and North. This is exactly the point.Report

      • Avatar Heidegger in reply to Freddie
        Ignored
        says:

        Freddie says: “Is getting accolades from liberals such a bad thing that you make it your first concern?”

        Absolutely, without question. To get an accolade from a Liberal would seriously make me consider sharpening the hari kari knives.

        Again, Freddie says: “Does the Constitution give government the right to use unmanned drones?”

        Yes it does. It couldn’t be clearer. It’s called the 14th Amendment. It’s called Equal Protection. It’s called fighting fire with fire and if these sub-human bloodthirsty terrorist barbarians want to launch suicide attacks on our civilians and military, then please, hunt down these cockroaches, fire the drones and come hell what may. SPLAT! When you really think about it, could anything be greater than an unmanned drone disassembling a terrorist? Sure, there will be occasional errors, but it has never been intentional nor has it ever been proven that the United States has ever deliberately targeted innocent civilians. If the 14th Amendment doesn’t do it for you, Freddie, there’s a law that was passed soon after 9/11, called, “Authorization for Use of Military Force (AUMF) against al-Qaeda and other terrorists. “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
        Resolved by the Senate and House of Representatives of the United States of America in Congress assembled.”
        The votes went like this: House–420 Ayes, 1 Nay and 10 Not Voting Okay, guess who voted, Nay? None other than the certifiably insane, Barbara Lee—yes, the Barbara Lee that wanted to have a House investigation to explore the possibility that George W. Bush was part of a conspiracy that purposely allowed the terrorist attacks on 9/11. And if you’re having problems with this, under the laws of international conflict, it is lawful and permissible for the the United States to use the full weight of its military to defend herself and that al Qaeda and other terrorists will be lawful targets of armed attack regardless of where they are located. That’s right, REGARDLESS of WHERE they are located. A double SPLAT!

        (And please, Freddie, I implore you, do not skip medication time. Nurse Ratched means you not harm.)Report

        • Avatar RTod in reply to Heidegger
          Ignored
          says:

          H- me thinks you’re arguing Freddy and Mark’s point for them. That you see the 14th amendment as having been originally meant to allow “fighting fire with fire thigh these subhumans” it seems clear that your side believes that what ever you think is good must be Consitutional to the same extent that the left does.Report

          • Avatar Michael Drew in reply to RTod
            Ignored
            says:

            In fairness to all or any sides, I don’t think Heidegger fairly represents a side – any side, probably including his own Side of One, if even that exists. (IOW, Don’t feed the troll, and I am generally extremely disinclined to call people trolls.)Report

            • Avatar Heidegger in reply to Michael Drew
              Ignored
              says:

              Well you don’t just understand the meaning of the word, “troll”. To sincerely express my opinion on a subject is not, in any way, “trollish” behavior. If I was just doing it for the expressed purpose of deliberately upsetting people, or provoking arguments, that’s a different story. And, that’s just not the case. So, it appears your extreme “discipline” in the use of the T word to characterize this dissenting poster, has largely escaped you. Such a pity. In the meantime, where are those damn hari kari knives….Oh, Mike, are you aware that you are on YouTube?

              See for yourself.

              Report

              • Avatar Michael Drew in reply to Heidegger
                Ignored
                says:

                You’re right, I’m not good with the def. of troll, hence my reticence about using the term. So maybe I’ve gotten it wrong yet again and should have stood by my tendency. I leave it to the judgement of the readers, and stand by my view about the question of you and your “side.”Report

        • Avatar Chris in reply to Heidegger
          Ignored
          says:

          Heidegger, when and where did Lee suggest that Bush had something to do with 9/11? Or is this just another of your many made-up “facts?”Report

          • Avatar Mike Schilling in reply to Chris
            Ignored
            says:

            From Wikipedia

            Lee gained national attention in 2001 as the only member of congress to vote “No” on the Authorization for Use of Military Force Against Terrorists (AUMF), stating that she voted no not because she opposed military action but because she believed the AUMF, as written, granted overly-broad powers to wage war to the president at a time when the facts regarding the situation were not yet clear.

            I expect many of us here agree with her premises, even if not with her conclusion.Report

            • Avatar Heidegger in reply to Mike Schilling
              Ignored
              says:

              I expect many of us here agree with her premises, even if not with her conclusion.

              Mike, if you want to call the League of Ordinary Gentlemen some kind of cyber nuthouse, that’s your right, but personally, I find it deeply offensive. If you want to be in that utterly revolting human being’s corner (Barbara Lee), great. Just don’t go dragging the more thoughtful and intelligent people on this site, with you.Report

          • Avatar Heidegger in reply to Chris
            Ignored
            says:

            Chris, it was my impression that Barbara Lee, who was a strong advocate for impeaching Bush and Cheney and subsequently became a co-sponsor of a bill to impeach Bush and Cheney for war crimes, lying to the public about reasons for going to war in Iraq, wiretapping, torture, Plamegate, etc, etc, etc, I thought the charge that Bush and Cheney were in some way complicit in the events of 9/11, was also part of the impeachment bill. But I was WRONG.
            You were RIGHT. At least, with regard to the Bush/911 conspiracy charges. My apologies. I have no problem admitting my errors when they occur, so thank you for bringing it to my attention. Barbara Lee has said enough other crazy things, so it would hardly be that out of character to think she also believed Bush was somehow complicit in 9/11. I think I can already hear the “racist” charges bellowing from the rafters so I hope you will please spare me any such knee-jerk reactions and accusations.Report

            • Avatar RTod in reply to Heidegger
              Ignored
              says:

              “Barbara Lee has said enough other crazy things, so it would hardly be that out of character to think she also believed Bush was somehow complicit in 9/11.”

              What a fucking racist…Report

            • Avatar ThatPirateGuy in reply to Heidegger
              Ignored
              says:

              Waterboarding is torture.
              authorizing/ordering torture is a war crime.
              Bush/Cheney authorized/ordered Waterboarding.

              Conclusion: Bush/Cheney are war criminals

              War criminals count as “high crimes and misdemeanors”

              So as far as I can tell if all my premises are true then it was not only proper but constitutionally required to impeach Bush. Sadly it was not done.

              The only premise that could possibly be attacked here is that Waterboarding is torture. I take a dim view of that line of argument. I am confident that it is a valid argument, so the only way to keep it from being sound is to attack the premises.Report

              • Avatar Heidegger in reply to ThatPirateGuy
                Ignored
                says:

                Pirate, you had the White House, a super-majority in the Senate, and a very large majority in the House for almost two years. If your charges are so certain and damning, why weren’t Bush and Cheney impeached? Why didn’t they even approve a preliminary probe to investigate the grounds for possibly impeaching Cheney and Bush? Now that’s something even you can’t even blame the Republicans for…and for the record, your premise about waterboarding being torture is factually incorrect. At the time it was being done, it was legal. Not now, of course, but that’s irrelevant. We don’t try people for behavior that at one time was legal, and then later becomes illegal.Report

              • Avatar mark boggs in reply to Heidegger
                Ignored
                says:

                Because they loves them some executive power, too. This shouldn’t be a partisan issue. It should be an issue of it’s always illegal, even when the President does it.Report

      • Avatar BSK in reply to Freddie
        Ignored
        says:

        I just want to co-sign on to this, Freddie. You have put into words what I have thought and felt for so long but could never verbalize nearly as well. Well done.

        I argue with my mom (a history teacher) a lot about the “righteousness” of the Founders. She always pulls up the “men of their times” meme. Horse shit, I say. Sometimes, wrong is just wrong, no matter when it happens.

        I think part of the issue is a major allergy to nuance present in modern society. People are either good or bad, holy or evil, right or wrong. Why can’t we say that Jefferson had some amazing qualities and some shitty ones? Or that Washington was a great general but a dickhead for owning slaves? Why does it have to be all or nothing?

        Me? I’m one for tearing up the Constitution every 100 years and re-writing it. Or something along those lines. Are we really comfortable defining our lives by the ideas of a group of guys who would freak out and have a heart attack if they saw modern society (not only because of our technological marvels, but also upon seeing interracial marriages or Congresswomen)? Obviously, there are some foundational tenets that we would want to preserve. But the document might as well have been written on a different planet. And, as such, the only option is to interpret it. Those who claim we shouldn’t are basically arguing that their interpretation is the only one.Report

    • Avatar Mark Thompson in reply to Jason Kuznicki
      Ignored
      says:

      The whole point here is that there ultimately is no one philosophy behind the Constitution without the Bill of Rights. Behind the DoI? Absolutely. Behind the Bill of Rights? Definitely.

      Just because Patrick Henry lost on the main body of the Constitution doesn’t mean he was wrong – to the contrary, I think you’d agree that his words were generally quite prescient, and it chills me to think what the US would look like had he not won the battle to include a Bill of Rights.

      But I think you’re also misreading me a bit here – I do not say that the Constitution grants plenary power. I say that it is silent as to the interpretation of its enumerated powers and, outside of the Bill of Rights and things like the prohibition of ex post facto laws, provides nothing to limit the interpretation of often very vague words. And read those Patrick Henry speeches again, especially the portion quoted above – you’ll see that the entire basis of his fears was often precisely that vagary, and that this vagary would ultimately prove to be a grant of powers “by implication.”

      You assume the founders were reasonable, but obviously quite a few at the time thought differently. And of course some of them just several years later would push the Alien and Sedition Acts. When you look back and try to interpret a document that is the result of compromises between dozens of representatives of millions of people, how do you decide whose philosophy controls for purposes of interpreting that document? Is it Hamilton’s? Madison’s? Jay’s? Henry’s? Etc., etc. The answer is that you just have to pick the philosophy that makes the most sense to you, but you’re not going to be able to have any more evidence to support using that philosophy as a mode of interpretation than anyone else.

      So I think it is possible to interpret the text of the Constitution in an entirely libertarian manner, and if I were a judge in the late 18th/early 19th century, this is precisely how I would interpret it. But it really isn’t too difficult to see how another judge in the late 18th/early 19th century could interpret it in a manner entirely consistent with that now proffered by liberals.

      In conclusion, the short short version of this post is simply this: Patrick Henry was right.Report

    • Avatar Pat Cahalan in reply to Jason Kuznicki
      Ignored
      says:

      @ Jason

      > The powers of Congress are enumerated.

      Not by what I would call an intellectually rigorous definition of “enumerated”. I mean, I agree with you in principle, but what exactly does this mean:

      “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

      One man’s “regulation” is another man’s “tyranny”. There is no definition of “reasonable regulation” in the Constitution. If you’re looking at the Constitution as an axiomatically closed system, you’ve got one hell of a problem with a lack of definitions in the thing rendering the document impossibly vague.

      This is part of the problem of defining “limited government”. We may have enumerated powers, but we certainly don’t have anything resembling well defined limits on those individual enumerated powers.

      “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”

      Regulating the value of money sounds to me like eminently reasonable
      grounds for a central bank.

      “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years”

      This one seems to be tacitly stating that you absolutely can’t have a standing Army. We’ve got one. The militia clause, iff’n you ask me, prohibits a draft for an Army.

      > “It does violence to the plain meaning of the original,
      > unamended constitution.

      I’m not so sure this is a meaningful critique. We don’t use the original, unamended constitution.

      The founders may have been reasonable (I find that debatable to a degree, but okay); but they certainly did a crappy job of defining their terms. Which is one point I think Mark hits spot on, they didn’t define their terms because they had to stop and some point and say, “This is good enough to get all these guys to agree to vote on it.”Report

  7. Avatar James Vonder Haar
    Ignored
    says:

    Alexander Hamilton is doing a happy dance in the afterlife over how the commerce clause wound up being interpreted.Report

  8. Avatar Jaybird
    Ignored
    says:

    If the term “Constitutional” is used co-extensively as terms “good” or “beautiful”, etc, then it doesn’t really matter what the Constitution *SAYS*.

    When we, the people, know a thing is good then we know it is Constitutional.

    Health Care Reform? It must be Constitutional! People are hurting!
    Legal drinking age laws? They must be Constitutional! Do you want children drunk on gin?
    Banning of firearms? It must be Constitutional! Children are being shot in schools!

    What we want is the good. What the Constitution allows is the good. Therefore, what we want is Constitutional.

    What the Constitution itself says is irrelevant.Report

  9. Avatar E.C. Gach
    Ignored
    says:

    “As such, those amendments do not embody the language of compromise, but instead embody the language of absolutes and specifics: “shall make no law;” “the right of the people to keep and bear arms, shall not be infringed“; “the right of the people to be secure . . . against unreasonable searches and seizures shall not be violated” except under very specific circumstances; “no person shall be held to answer for a capital or otherwise infamous crime” unless very specific criteria are met; “in all criminal prosecutions” the accused must be guaranteed certain very specific rights.”

    And yet in each case you list the caveats we now take for granted. Perhaps I and misinterpreting and you are actually being ironic in this paragraph.

    “Congress shall make no law…abridging the freedom of speech, or of the press;” except in circumstances x, y, and z.

    The most uncompromising parts of our Constitution by far.Report

  10. Avatar RTod
    Ignored
    says:

    “I think there should be another Constitutional Convention to battle once more over limitations” – Mike

    “I keep saying that I would like a Constitution that reflects what the Government is honestly limited from doing and what it honestly is required to do and where the grey areas are.” – Jaybird

    “I have no objections to a Constitutional Convention, although I’m certain it would not result in anything resembling my ideal” –Mark

    The thinking in the threads above seems to be that the underlying problem is one of ambiguity, with two kind of assertions: (1) if there were less, we could all get on the same page and (2) that removing ambiguity would be a good thing. Aside from the fact that I think when most people (Mark’s comments obviously excepted) say they want things to be clearer they really mean they want to get their way, I think both of these assertions are wrong.

    Were we to have a new Constitutional Convention, or even more simply, we all agreed that Original Intent is the way to go, we wouldn’t have consensus of what everything means by the day after ratification. Because we all have our own agendas, as well as life experiences that shape our views, we will always interpret everything differently than others. It won’t matter how specific we try to get, new situations will come along and we’ll all think we know the correct answer, and the New Constitution (or the dedication to Original Intent) will be used (sincerely) to back up each person’s claim.

    More to the point, though, I argue this is a good thing for the Republic. Institutions that are based on the written word thrive more over time when there is enough ambiguity to allow them to be flexible with change. A perfect example: Protestantism vs. the Seventh Day Adventist movement. Protestantism grew out of many different religious leaders’ writings, with a huge variety of Biblical interpretations – to the point that you can believe almost anything relatively Christ-centric and the Protestants have your back. The movement is thriving, and will continue to do so. The SDA, however, were VERY specific in their dogma, to the point where William Miller actually gave the exact date that Christ would return – twice – and was proven embarrassingly wrong. The SDA is not blowing up.

    The lack of black v. white isn’t a weakness of our founding documents; its what allowed us to continue to thrive even as our landscape changes.Report

    • Avatar E.C. Gach in reply to RTod
      Ignored
      says:

      I think it’s the relative ambiguity. There is no ambiguity in for instance, Congress shall make no law, abridging speech…and yet we do have laws that do that, and I’m alright with having them, but to pretend they don’t fundamentally conflict leaves the flood gates open to wiggle room rather than a slow drip to keep up with the passage of time.Report

      • Avatar RTod in reply to E.C. Gach
        Ignored
        says:

        I’m not sure if you;re arguing that there is no ambiguity, should be ambiguity, or are arguing something else/just making a comment. But I’m intrigued so far… say more?Report

      • Avatar E.C. Gach in reply to E.C. Gach
        Ignored
        says:

        I think there is ambiguity in some areas of the C, and not in others, but that in a lot of areas where there isn’t like the First Amendment with regard to freedom of speech.

        We should just amend the amendment in a Constitutional Convention, to admit of exceptions for things like national security, fire in a crowded theater, etc. rather than just say, well oh we all know that by not restricting speech we don’t mean all speech…like, what?Report

        • Avatar RTod in reply to E.C. Gach
          Ignored
          says:

          I know everyone is going to come down on me like a ton of bricks for saying this, but… What’s wrong with the current system of having the Supreme Court decide these questions?

          I know it’s not perfect, and I know that it’s lead to decisions that folks on all sides have been unhappy about. But we are a pretty successful country, and even though we tend to think in apocalyptic terms we haven’t had the kinds of crises most others have had. And say what you want about the current system, if we really wanted to change something – even something huge, like getting rid of Roe v. Wade or eliminating the welfare state – we could do it within a year.

          Like most people here, there is a lot I want to change about the way government works. But I think to say “we can’t get enough consensus to back us up, so let’s scrap it and rebuild it to get where we want to be” strikes me as a fools errand at best, and (were it to happen) a different kind of tyranny at worst.Report

          • Avatar Jaybird in reply to RTod
            Ignored
            says:

            Scalia recently said something about how it was interesting that, once upon a time, we thought it necessary to amend the Constitution to allow women to vote. Today, he pointed out, we’d just have a court make a ruling about it.

            This is an interesting insight.Report

            • Avatar MFarmer in reply to Jaybird
              Ignored
              says:

              It is interesting, and it’s a problem — not the moral issue of women having the right to vote, but that we’ve given the courts that much power. The courts could also decide that some rights can be repealed, if this is the case. If they have the power to create rights, they have the power to take rights away. And, outside the basic human rights which apply to everyone, they can create special interest/group rights which violate the rights of those outside the group — that is if they interpret to justify.Report

            • Avatar gregiank in reply to Jaybird
              Ignored
              says:

              So its interesting that Scalia thinks we should have put it to a vote of the people at a Constitutional Convention…well the people who were allowed to vote: men, whether women should be allowed to vote. And if the Con Con did not decide to amend the constitution, well oh well then. Yes that is interesting.Report

              • Avatar ThatPirateGuy in reply to gregiank
                Ignored
                says:

                Scalia also seems to think that the 14th amendment doesn’t prevent gender discrimination.Report

              • Avatar Jaybird in reply to gregiank
                Ignored
                says:

                In the same vein, Greg, in the early 1900’s, it required a Constitutional Amendment to ban alcohol.

                Marijuana, on the other hand, is a Schedule I drug… and we are having arguments over what would happen if a State decided to make it “legal” for recreational and not just medicinal use.

                It’s certainly not boring or trivial.Report

              • Avatar tom van dyke in reply to gregiank
                Ignored
                says:

                The 14th Amendment has a Section 2 that excludes women’s suffrage as a necessary interpretation.

                ” But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State…”

                That was one “slippery slope” that they managed to anticipate. Just for the record.Report

            • Avatar Mike Schilling in reply to Jaybird
              Ignored
              says:

              Which Scalia would (on principle, of course) oppose, and write an opinion saying that if you can’t forbid women to vote, you also can’t keep the vote from indentured servants, illiterates, non-property-owners , felons, minors, and farm animals.Report

          • Avatar E.C. Gach in reply to RTod
            Ignored
            says:

            “What’s wrong with the current system of having the Supreme Court decide these questions?”

            I’m not arguing against them deciding these questions so much as the seeming lack of prudence with which they adjudicate them.

            Obama noted it a ways back, that liberals have relied for to long on the court system to win their battles. I think we’ve entered a period where conservatives have begun to do the same, at least in some areas.

            My point isn’t that SCOTUS shouldn’t try to muddle through ambiguous passages, it’s that there are plenty of passages that are as clear as could be, and any argument to the contrary must be so devastating as to bring down any semblance of certainty or communicability in our language.

            How, if you had to, would you argue that, “Congress shall make no law…abridging the freedom of speech, or of the press;” is fertile ground for multiple divergent interpretations?Report

            • Avatar Jaybird in reply to E.C. Gach
              Ignored
              says:

              How, if you had to, would you argue that, “Congress shall make no law…abridging the freedom of speech, or of the press;” is fertile ground for multiple divergent interpretations?

              A Devil’s Advocate might point out that corporations aren’t people and the First Amendment doesn’t prevent laws that censor corporate speech.Report

              • Avatar E.C. Gach in reply to Jaybird
                Ignored
                says:

                No, it protects the “press”, so I agree that you would then, in that area, have an ambiguity. But one as to what speech is protected?Report

              • Avatar Jaybird in reply to E.C. Gach
                Ignored
                says:

                At the time the Amendment was written (groan) “the press” didn’t mean “The Mulligatawny Tribune And Bugle” but “speech that was written down”.

                Of course, the Fathers could not have foreseen the internet, etc.Report

              • Avatar E.C. Gach in reply to E.C. Gach
                Ignored
                says:

                Right, I’m not saying it would then protect corps, or that they are part of the Press, but that associations of people could still meet and still speak/write.

                Clearly Corps aren’t people, and don’t have the same rights as people (unless we want to be consistent and give them the same responsibilities). And I’m fine with that, and if people want corps to have freedom to speak, they can amend the Constitution.

                I’m looking for and interpretation of that phrase that would justify then proposing something like giving corporations speech, or prosecuting those who reveal state secrets, etc.Report

              • Avatar Jaybird in reply to E.C. Gach
                Ignored
                says:

                From my nutball perspective, the First Amendment prevents the Congress from censoring speech.

                Whether it be spoken by Illegal Immigrant, Born Citizen, or Corporation, the Congress shall pass no law abridging the Freedom of Speech.

                When it comes to speech that could do harm to the Nation (state secrets, etc), that’s a toughie… but I suspect that laws covering “Treason” would handle this issue when it comes to citizens. When it comes to non-Citizens operating on foreign soil (that is: soil that we have no reasonable claim for jurisdiction over)?

                That’s a really interesting question, isn’t it?Report

              • Avatar gregiank in reply to Jaybird
                Ignored
                says:

                Actually treason would be a reason to arrest and jail person for releasing important state secrets. But how does that relate to censoring what he was going to say? It doesn’t. Just because you arrest a person doesn’t give the Gov the authority to stop him from releasing info. It actually takes giving the Gov the power of prior restraint, or to be clear: infringing on freedom of speech, to prevent John Q Traitor from releasing secret info.Report

              • Avatar E.C. Gach in reply to E.C. Gach
                Ignored
                says:

                Then there’s a metaphysical question of whether a Corp. can in fact, speak? How could it be abridged if it couldn’t be done in the first place. But I’ll give you that, I’m less interested in who’s speech is protected, though that is certainly important, and more interested in how not abridging speech can be consistent with abridging it in specific circumstances. So if we want to say speech no matter where it originates, I’m fine with that for now.

                As far as the treason issue goes. That seems precisely the problem to me. How can you make a law that conflicts with the first? I’m all for acknowledging treason as an important matter to be addressed, but not my circumventing other laws that directly contradict prosecuting it when occurring through speech.

                If there is such a conflict, the Court should just not weigh in at all, until such a time as the contradiction is relieved.

                Maybe that’s impractical, and too ideal, but some lesser version might be more sane then walking around with internally contradictant documents and statutes that directly conflict.Report

            • Avatar RTod in reply to E.C. Gach
              Ignored
              says:

              “How, if you had to, would you argue that, “Congress shall make no law…abridging the freedom of speech, or of the press;” is fertile ground for multiple divergent interpretations?”

              I’d argue thus: Since less than a decade after the Bill of Rights was passed it supporters/ratifiers seemed to think it was OK to pass the Alien and Sedition Act and jail journalists that were critical of them with bails posted at amounts so high they were essentially jailed indefinitely, they obviously had a very different interpretation of those words than we do today. And I would argue that ours is better.Report

              • Avatar E.C. Gach in reply to RTod
                Ignored
                says:

                Whether they intended words to mean something or not, the words can speak for themselves (unless restricted by supplanters of the 1st A.)

                Just because they wrongly interpreted their own language says nothing as to whether they were justified in doing so. Just because they were wrong, and we are less wrong, does not me the whole thing isn’t’ still ludicrous.

                I’m confused as to why their committing the same blunder as our current judicial system hurts my point.

                Perhaps it would help if you filled in what their argument was at the time, what their interp was, that they thought justified doing so?Report

              • Avatar RTod in reply to E.C. Gach
                Ignored
                says:

                “Just because they wrongly interpreted their own language”

                I think this is precisely the point that Mark has been trying to make. I don’t think they would think they wrongly interpreted their own language. I think they’d think you were crazy believing what we we believe about what the freedom of speech and the press should allow us to do today. Same as how the language about who is qualified to be President doesn’t say: “but make sure he’s not a black or a jew or a woman” might lead us to believe that they’d have been just fine with that and would want it that way.

                And I don’t know enough to argue their point on their behalf, except to say that my recollection was that it was primarily a strategy to keep the competing political party out of power. My point is simply that the danger of thinking that you know exactly what the one true interpretation of words are is that so does everybody else; and theirs is often are way different from yours.Report

              • Avatar E.C. Gach in reply to E.C. Gach
                Ignored
                says:

                I should have made clear, I’m not an Originalist in any sense.

                My concern is less with trying to divine the meanings and intentions of a quarrelsome bunch of old white guys from the 18th century, and more simply with what the document states.

                Are you really telling me that freedom of speech includes not freedom of speech? That certain speech was unspokenly known to be prohibited and not included in capital S speech? or that freedom does not me freedom, but a limited freedom?Report

              • Avatar RTod in reply to E.C. Gach
                Ignored
                says:

                No, what I mean is that we have WAY more freedom of speech and press today than in the first century of our country. And that seems right and good and proper with us according to what the first amendment says (except perhaps those of us that want even more).

                But unless you think everyone who came before us was a Simon LeGreed character, twisting their mustaches and saying “mua-ha-ha!” about how they were using eeevil to circumvent the first amendment, I think it stands to reason that they all interpreted those seemingly simple words very differently than we do.

                I’m not saying that an older interpretation is just as good as ours today – I don’t and it isn’t. I’m just saying that believing that because it seems simple to us that we will all interpret it the same way will lead to disappointment down the road.Report

              • Avatar E.C. Gach in reply to E.C. Gach
                Ignored
                says:

                I think it stands to reason that they all interpreted those seemingly simple words very differently than we do

                But why does that fact, that they did interpret differently, justify doing so, or that there isn’t a better more accurate interpretation.

                For instance, different people might interpret the number of beans in a glass jar, doesn’t mean we can’t throw out certain interpretations of the number.

                And yes, words, as symbols, are not objects in the way that we can so accurately measure them, but certain phrases, in order to maintain their integrity as functional symbols, must have some degree of specificity not up for grabs in an interpretive free for all. Yes there is ambiguity, but currently more than is justified in many passages.Report

  11. Avatar Dave
    Ignored
    says:

    Mark,

    To me, it reads like a defense of living constitutionalism that 1) doesn’t quite come out explicitly but has telltale signs such as what I imply as your view on consitutitonal legitimacy and 2) uses as its foil a form of interpretation that not only doesn’t apply to the libertarian position at all (to me, it’s original intent originalism since you don’t seem to address textualist arguments) but has long since been dismissed as inadequate (even prior to Bork’s failed confirmation).

    You also try to have your cake and eat it too by holding the Constitution to one standard and the Bill of Rights to another as far as your discussion of framework is concerned. You and I both know how this has worked in reality, especially with respect to the 2nd, 9th, 10th and 14th Amendments (among others). I don’t see how one can argue that the 9th and 10th Amendment have any teeth under the loose framework you seem to attribute to the Constitution.

    The Reconstruction amendments, especially Section I of the 14th Amendment, is at its core very libertarian, and if there’s anything that embodies the meaning of that amendment and the role of the state police power under that Amendment, it was the majority decision in Lochner v New York. The best part of the Lochner decision is that both the majority and dissenting opinions highlight the conflict between the traditional classical liberal view of the state police power and the, at the time, modern liberal view of the proper role of the state police power.

    With that in mind, I fail to see how anyone could claim that the Fourteenth Amendment falls within the intellectual heritage of modern liberalism since the Fourteenth Amendment protected both enumerated and unenumerated rights equally and the Progressives threw the latter under the bus in cases like Nebbia v New York and West Coast Hotel v Parrish. Too much happened between the ratification of the 14th Amendment and the post-New Deal doctrine to make that statement.

    The few libertarians blawggers I have come across either personally (KipEsquire) or through their writing (Jason, Jon Rowe, Tim Sandefur and a few others) don’t necessarily advocate a libertarian reading of the Constitution but are generally textualists (Tim does refer to principles but not to the point of ignoring text). Call them originalists or textualists but that’s where the conversation should start. I agree that there’s no one philosophy, but the words “necessary” and “proper” have meanings. If we don’t start the discussion on textualist grounds and move away from that (as the Progressives basically did with their “interpretations” and emphasis on democratic process over legal formalism), then all we’re doing is spinning our wheels.

    One other thing:

    But I think ultimately libertarians have to accept that our preferred understanding of the Constitution has no more evidence in its support than liberals’ preferred interpretations.

    150 years of pre-New Deal case law goes a long way to dispute this claim. You can’t get to Helvering v Davis or Wickard v Fillburn without making some huge leaps of faith.Report

    • Avatar Mark Thompson in reply to Dave
      Ignored
      says:

      I don’t have time to respond more than this right now. But a few things:
      1. It may well be that I’m venturing into a form of living constitutionalism. But then again, few of these words have narrow meanings or even necessarily had terribly narrow meanings at the time, and many of them, such as “necessary,” “proper,” and “welfare,” to name a few, are heavily normative terms that are undefined. Intentionally undefined, most likely.
      2. I get your point about the 9th and 10th Amendments, but see my brief explanation to Michael Drew above. But I don’t think they provide much of a mode of analysis for defining the ambiguous terms in the main body of the Constitution. In many ways they read like boiler plate contractual provisions – reservations of rights clauses, in effect. That does not make them meaningless at all, but there’s nothing in the text of them to suggest that the various ambiguities be construed narrowly (nor, of course, is there anything in the Constitution to suggest that the ambiguities be construed broadly).
      3. It may be that I’m trying to have my cake and eat it too in terms of the Bill of Rights. But I don’t think there’s any dispute that the language in the Bill of Rights is much firmer, more specific, and less ambiguous (which is not to say that it is completely unambiguous) than much of the language in the main body of the Constitution.Report

      • Avatar Dave in reply to Mark Thompson
        Ignored
        says:

        I’m pretty busy as well, but for now:

        1. I never suggested that the text itself is sufficient to construct legal rules and resolve controversies, but text-based originalism does address this (I’ll need to pull my copy of Restoring the Lost Constitution if I need to elaborate).

        2. Not much to say there although I never really went down that road, or so I thought. No big deal for now.

        3. That’s a bit of a judgment call. Yes, some of the amendments have firm text but others leave room for judgment, no different than certain clauses in the original Constitution.

        One last thing:

        So far as I am aware, the only limitations on Congress in the main body of the Constitution are the very specific and highly uncontroversial provisions in Art. I, Sec. 9.

        1. The Vesting Clause in Art I. Sec. I references the legislative powers herein granted. To suggest this as a limitation on Congress’ power to those powers granted within the document is not out of the realm of reason.

        2. The Necessary and Proper Clause, while giving Congress’ some leeway to enact legislation that is not specifically enumerated in Art I. Sec. 8 limits that to those laws “necessary and proper for carrying into Execution the foregoing powers, and all powers vested by this Constitution in the Government of the United States”

        How are these not limitations?Report

        • Avatar Mark Thompson in reply to Dave
          Ignored
          says:

          The Vesting Clause in Art I. Sec. I references the legislative powers herein granted. To suggest this as a limitation on Congress’ power to those powers granted within the document is not out of the realm of reason.

          I’m skeptical of this being a general limitation on the government as a whole, rather than simply a delineation of the separation of powers. But even if that’s a reasonable interpretation, it does not make the liberals’ preferred interpretation any less reasonable and plausible. It just means that there are alternative interpretations, which is very much my point.

          The Necessary and Proper Clause, while giving Congress’ some leeway to enact legislation that is not specifically enumerated in Art I. Sec. 8 limits that to those laws “necessary and proper for carrying into Execution the foregoing powers, and all powers vested by this Constitution in the Government of the United States”

          I definitely don’t see how the necessary and proper clause is a limitation. Certainly it is an enumerated power, and certainly it is not an absolute grant of power (nor could it be since there is nothing in the Constitution that explicitly makes an absolute grant of power), but it’s a fairly vague and normatively-laden grant of power that relates back to….fairly vague and normatively-laden grants of power.

          I think the point that the libertarians in this thread keep missing is that not even the liberal interpretation views anything in the Constitution as being a grant of absolute power; they simply interpret the grants of power that do exist in the Constitution more broadly than do libertarians. But just because they interpret the terms more broadly does not mean that their interpretation is unreasonable or that their interpretation amounts to a belief that the powers of the federal government are unlimited.

          It is not enough to demonstrate a basis for a narrow interpretation. It must also be demonstrated that a broad interpretation lacks any basis.Report

  12. Avatar 62across
    Ignored
    says:

    I’m a little late to the party, but I wanted to applaud this whole thread – both the lead article and a great deal of the comments that follow. Very interesting…Report

  13. Avatar Steven Donegal
    Ignored
    says:

    I just finished reading a great book–Ratification by Pauline Maier. It is the history of the ratification process in each of the states. Two general themes really stood out–(1)how much opposition there was to the Constitution and how narrowly it was adopted; and (2) how often in the state conventions, the arguments of the anti-Federalists were met with some version of “Yes, that provision may be problematic for the reasons you state, but Congress would never do what you fear.” Whether the supporters really believed that I will leave to your judgment, but in any event they were wrong. Congress did it and much more.Report

  14. Avatar Jaybird
    Ignored
    says:

    A handful of questions I have for the Living Constitutionalists:

    Is it possible to interpret a Living Constitution incorrectly?

    Is it theoretically possible for a judge to interpret and to be wrong?

    Could you give an example of this happening?Report

    • Avatar RTod in reply to Jaybird
      Ignored
      says:

      Jaybird:

      Do you mean in my opinion, or just in general?

      If just in general, I’d say pick any lower court decision that was later reversed by the Supreme Court. That, by definition, would be an example of what you’re talking about. (I’m not a big believer that if Congress passes a law, it is approved by the executive branch, and it is challenged but upheld by the Supreme Court, it is still unconstitutional if I really don’t like it.)Report

      • Avatar Jaybird in reply to RTod
        Ignored
        says:

        Do you mean in my opinion, or just in general?

        Here is my request from now until forever (for not just you but anybody!): If there is more than one answer that you could, in good faith, give to a question I’ve asked: give all of them. Odds are that I’m asking because something is opaque to me and the more answers I get, the more likely I’ll find a way to think about something differently.

        If just in general, I’d say pick any lower court decision that was later reversed by the Supreme Court.

        This is a good answer. I thought similar as soon as I hit post… (I also wanted to put an ‘if so’ at the beginning of the last question but my hand/mouse betrayed me).

        But we’ve seen cases where we have a case reversed by the State Court, then by the District Court, and then by the Supreme Court. (Civil cases, anyway.)

        We’ve also seen cases where the Supreme Court says X at time T and Y at time Tsubone.

        Are they both correct?Report

        • Avatar RTod in reply to Jaybird
          Ignored
          says:

          Well, I would certainly say yes. I believe the Constitution is simply a framework for us to work from; I do not think it divine or infallible. And the framework says if its good to go from congress>executive>Supreme Court than it’s Constitutional. In the 1890s the Supreme Court upheld that segregation was Constitutional, and so it was. And then along came Brown, and then it wasn’t. I don’t like the former but as I was saying to Mike, I think you either play by the rules even when you don’t like the outcome, or you decide you’re OK with one guy deciding everything all the time so you avoid all the “interpretation” pitfalls.Report

    • Avatar gregiank in reply to Jaybird
      Ignored
      says:

      Is three questions a handful? hmmm

      Yes, of course. Its possible for any constitution, regardless of whether its alive or Original flavor to be interpreted wrong.

      See above.

      Is Dred Scott an okay example?Report

      • Avatar Jaybird in reply to gregiank
        Ignored
        says:

        Is three questions a handful? hmmm

        If I may be crude, it’s not more than a handful.

        Some might say that no questions were wasted.
        Others might not see enough questions to interest them.

        Is Dred Scott an okay example?

        I honestly don’t know that it is. Dred Scott, as morally abhorrent a decision as it was, seemed to be a court decision that kicked the can down the road, relied on stare decisis, and did not wish to rock any boats.

        But the Constitution *DID* allow for slavery and it *DID* allow for the states to figure out who was and who was not a Citizen. Given those two things, I don’t know that an attempt to keep the status quo was necessarily (and I’ll use a loaded term here) “judicial activism”.

        Now, of course, this case did expose a fissure in the Constitution that Slavery does a hell of a bang-up job of abridging the rights of people… their speech, press, assembly, privacy… even their self-defense! (It’s small wonder we ended up in a war so soon thereafter.)

        But I don’t know that the Supreme Court interpreted the Constitution, as it was written at the time, incorrectly. Immorally, yes.

        (Note: I do not see “Constitutional” as co-extensive with “Good” and I do not see “Unconstitutional” as co-extensive with “Bad”.)Report

    • Avatar Pat Cahalan in reply to Jaybird
      Ignored
      says:

      I’m not really a “living constitutionalist” (unless you’ll insist that there are only two classes, “living constitutionalist” and “originalist”, I suppose), but I find the questions interesting, so:

      Is it possible to interpret a Living Constitution incorrectly?
      * It is possible to interpret anything incorrectly. It’s possible to interpret an originalist constitution incorrectly. Hell, it’s possible to add two and two together and get five (incorrectly).

      Is it theoretically possible for a judge to interpret and to be wrong?
      * Sure.

      Could you give an example of this happening?
      * I don’t think that there is any way that you can fold, spindle, and twist your way into a conclusion that the current NSA dragnet over the telecommunications network is constitutional, if you understand the technology and what they’re actually doing. It’s clearly contrary to both an originalist and at least one living interpretation of the fourth amendment (if you’re going to insist that I’m a living constitutionalist), at least in my estimation.Report

  15. Avatar Thurman Hart
    Ignored
    says:

    A Constitution is a reference point from which principles and thus legal positions can be extrapolated.

    Note that the UK has functioned quite well without a Constitution at all. It is run purely by principle and tradition, by codified laws and legal precedent.Report

Leave a Reply

Your email address will not be published. Required fields are marked *