Interpreting the U.S. Constitution (and related topics)

[Primula Baggins]

Well, to put in another way, if it is necessary to interpret the Constitution to find rights to abortion and gay marriage and the like in order to keep it up with 21st-century values, then why don't people living in the 21st century vote for them?

Because people don't get to vote to determine other people's rights, maybe?

[Inanna]

Well, to put in another way, if it is necessary to interpret the Constitution to find rights to abortion and gay marriage and the like in order to keep it up with 21st-century values, then why don't people living in the 21st century vote for them?

Because people don't get to vote to determine other people's rights, maybe?

Ditto.

[yovargas]

Well, to put in another way, if it is necessary to interpret the Constitution to find rights to abortion and gay marriage and the like in order to keep it up with 21st-century values, then why don't people living in the 21st century vote for them?

Because people don't get to vote to determine other people's rights, maybe?

Right. That's what the Constitution is for. And why it's so important to follow it.

[Inanna]

Well, to put in another way, if it is necessary to interpret the Constitution to find rights to abortion and gay marriage and the like in order to keep it up with 21st-century values, then why don't people living in the 21st century vote for them?

Because people don't get to vote to determine other people's rights, maybe?

Right. That's what the Constitution is for. And why it's so important to follow it.

And interpret it to allow Floridian gay-couples to adopt?

[yovargas]

Because people don't get to vote to determine other people's rights, maybe?

Right. That's what the Constitution is for. And why it's so important to follow it.

And interpret it to allow Floridian gay-couples to adopt?

I can't say I know exactly what constitutional issues were at hand so I honestly don't know whether or not I would agree with the decision legally. But if there was some clear anti-gay language in the Florida Constitution (I don't believe there was?) then yes.

[Voronwë the Faithful]

Forgive me for being so contrary, yov, but that simply is not true. The constitution was deliberately written to be broad and flexible to accommodate social or technological change over time. Edmund Randolph ... John Marshall ... Thomas Jefferson ...

Is it originalist to cite the opinions of the founders in opposition to originalism?

The point is that true originalism supports rather than opposes the concept of a "living constitution".

[N.E. Brigand]

Ah, but should we be true originalists? Do we have to support a "living constitution" just because that's what the founders wanted?

[Voronwë the Faithful]

No, not just because that's what they wanted, but also because they were right to want that. The only reason our constitution has been such a successful guiding document is that so much flexibility was intentionally built into it. Because the founders followed their own advice of deliberately stating only general principles rather than a lot of inflexible specifics, interpretation with the times is not only desirable, it is necessary.

[Túrin Turambar]

Well, to put in another way, if it is necessary to interpret the Constitution to find rights to abortion and gay marriage and the like in order to keep it up with 21st-century values, then why don't people living in the 21st century vote for them?

Because people don't get to vote to determine other people's rights, maybe?

Would that make, say, all gun control legislation unconstitutional?

[Voronwë the Faithful]

I don't understand your point, LM.

[Faramond]

If voters can't vote to restrict right to have an abortion or the right to gay marriage, why can they vote to restrict the right to bear weapons? Hell, there's actually an amendment about that one, which there isn't for the first two, not directly. LM's point is one worth thinking about.

[Voronwë the Faithful]

The answer is that they can't, so far as I am aware, now that the Supreme Court has definitely determined that the second amendment protects an individual's right to bear arms (despite evidence that it was never the founding father's intention that it do so ). Why, has there recently been a voter initiative restricting the right to bear weapons? I haven't heard of one, but that doesn't mean that there hasn't been one.

[Túrin Turambar]

It's a point of theory. A great deal of what the government does restricts someone's right to do something. So I think that a position of not allowing something that affects someone's right to be voted on or enacted by a legislature is an untenable position. The question, then, is what rights should be elevated above that (ie. made part of the social contract itself) and which ones should be open for debate in the public and political forum. Which brings us right back to where we started.

D.C. v. Heller popped into my head because I think that it is an interesting case. The United States has opted for a standing army rather than a militia for its defence, leaving the Second Amendment without any definite meaning. So the Supreme Court had a lot of freedom in interpreting it, and decided to find that it protected an individual right to bear arms unconnected with militia service. So it that case it overturned precedent (although the ruling in my view was not completely out of line with common law, although that’s a point for another thread) in order to establish that a provision in the Constitution protected an individual right. Presumably it felt the ruling was in line with modern standards and modern interpretation. The people of D.C. were unable to vote, through their legislature, to deprive Heller or anyone else of their personal right to keep handguns. So in that case, the Supreme Court ruled in line with Prim’s maxim that ‘people don't get to vote to determine other people's rights’. Expanding that principle would render virtually every restriction on the right to keep and bear arms unconstitutional. I imagine that would be little to the liking of people on this board, including myself, so clearly some further qualification is needed.

I find this is be kind of like state’s rights. Everyone seems to love state’s rights as long as they’re talking about a state doing something that they like that the country as a whole or the federal government is opposed to. And when the situation is reversed, it is ‘no longer a question of state’s rights’, or ‘states don’t have rights, people do’ or something to that effect. Likewise, everyone seems to want a strong, robust, activist court as long as the court is making rulings in line with their political beliefs. I accept that the judges of the SCOTUS should have far more power than the average voters on questions of legal interpretation, but I don’t see why they should on questions that are basically political.

[Frelga]

Well, as far at the right to bear arms, there is that bit about "well-regulated."

tinwë, excellent post.

[Cerin]

The answer is that they can't, so far as I am aware, now that the Supreme Court has definitely determined that the second amendment protects an individual's right to bear arms (despite evidence that it was never the founding father's intention that it do so ). Why, has there recently been a voter initiative restricting the right to bear weapons? I haven't heard of one, but that doesn't mean that there hasn't been one.

I think the issue most recently being addressed by referendums subsequent to the SCOTUS ruling is the right to carry unconcealed loaded weapons in public. Perhaps the court ruling addressed the issue of the right to own weapons but didn't specify about the right to carry them around loaded.

[Voronwë the Faithful]

Thanks. I see from Googling that there is the possibility of a concealed weapon law going on the ballot in Michigan.

But the main point remains. The situation is no different for the right to bear weapons than it is for the other rights that we have been discussing. The people can no more vote to restrict that right beyond the point that the SCOTUS ultimately determines is constitional than they can vote to restrict any other right beyond the point that the SCOTUS ultimately determines constitutional. So I'm afraid I still don't understand the point being made.

[Cerin]

Tangentially speaking of the court, I didn't realize that Justice Kagan has thus far recused herself from 21 of the 53 cases the court will consider, due to her work in the administration. I don't know how likely it is that that would result in ties in those cases, though, since she is replacing Stevens and not a conservative justice.

[Faramond]

Well, to put in another way, if it is necessary to interpret the Constitution to find rights to abortion and gay marriage and the like in order to keep it up with 21st-century values, then why don't people living in the 21st century vote for them?

Because people don't get to vote to determine other people's rights, maybe?

I occurs to me that this is not really an answer to the question LM posed.

What evidence is there that gay marriage, for example, is really a 21st century value? I do think it should be legal but the evidence suggests that less than half Americans consider it a value of our times. So far. I think it will make it eventually, no matter what the Supreme Court does. In that sense, the Supreme Court is irrelevant, as it should be. The Supreme Court has no say on what the values of our times are. But of course the Supreme Court has a lot to do with the timing of when something becomes legal.

Voronwë, the point I take from what LM said is that if your position is that "you don't get to vote to determine other people's rights" then there is an awful lot you can't do legislatively. A lot of things can be couched in terms of rights. I guess it begs a follow up question, which rights can't you vote on? I suppose you can answer, "those rights that the Supreme Court has defined", but this is a philosophically sterile position. What rights should be off limits to modification by voters, regardless of what the Supreme Court has said? Or should we always just agree with the Supreme Court?

[halplm]

Forgive me for being so contrary, yov, but that simply is not true. The constitution was deliberately written to be broad and flexible to accommodate social or technological change over time. Edmund Randolph ... John Marshall ... Thomas Jefferson ...

Is it originalist to cite the opinions of the founders in opposition to originalism?

The point is that true originalism supports rather than opposes the concept of a "living constitution".

I disagree, although it depends on how you define "living constitution." The constitution being broad and flexible to accommodate changes in society has nothing to do with interpreting the constitution to say things it does not (such as the right to an abortion because of a right to privacy... neither of which is there).

I think it would be more accurate to say the broadness and flexibility of the constitution was to allow more freedom for laws that were subject to constitutional authority to deal with change in society, as that's where most of the governing is done anyway. If there were changes big enough they needed constitutional changes, that's what the amendment process is for... not the supreme court.

It's interesting you brought up John Marshall, VtF, as he was largely responsible for the more powerful federal government we have now that many are finding to now be more and more problematic.

I don't think even the federalists would have envisioned the amount of power the federal government now has, or how the constitution has been used interpretively by the supreme court. But then again, maybe they would.

[Voronwë the Faithful]

[Voronwë, the point I take from what LM said is that if your position is that "you don't get to vote to determine other people's rights" then there is an awful lot you can't do legislatively. A lot of things can be couched in terms of rights. I guess it begs a follow up question, which rights can't you vote on? I suppose you can answer, "those rights that the Supreme Court has defined", but this is a philosophically sterile position. What rights should be off limits to modification by voters, regardless of what the Supreme Court has said? Or should we always just agree with the Supreme Court?

Excellent response, Faramond. I have to look at this with somewhat doubled vision. From a legal point of view, I do have to say that, short of being able to push through a new amendment to the U.S. Constitution (a difficult proposition) or wait until the composition of the Supreme Court changes and overrules a previous decision, that interpretation of what rights must be protected is sacrasanct. That is the system as it currently exists. But that certainly can lead to a moral conundrum, can't it?