Philosophy on Constitutional interpretation

Manwë was known for many things, but wisdom and power are two that lead the rest of his attributes. Join the Councils and discuss the more weighty matters of Tolkien Fandom.

Philosophy on Constitutional interpretation

Postby portia » Sun Feb 14, 2016 7:25 am

There are two--at least--points of view on interpretation of the Constitution.

One-simply stated- is that the Constitution is the Law of the Land and must be followed, strictly.

The other is that the Constitution is a blueprint and that the ways the country has changed need to be considered, too.

More flexibility in interpretation leans toward a Parliamentary form of government, which is fine for those who want it, but it is not what was chosen for us. On the other hand, this country is very different from what existed in the 1780s. The framers could not have imagined what the changes are and why. This country possibly cannot be run on the principles of the 1780s.

My own view is that we need to try to figure out what the underlying principle of the various points in the Constitution were, and try to apply them to the current issues. A cookie cutter approach will not work and neither will an approach to throw out the old.

(I am astounded by Scalia's vote in favor of Citizens United. since that decision threw out an historically firm point of view that a Corporation is not a natural person and does not get the protections that a natural person gets. How is that Conservative or strictly constructed?)
Last edited by portia on Tue Feb 16, 2016 9:08 am, edited 2 times in total.
User avatar
portia
Ringbearer

 
Posts: 10841
Joined: Mon Dec 22, 2003 9:57 pm
Location: Lost in the forest
Top

Re: Philosophy on Constitutional interpretation

Postby hamlet » Tue Feb 16, 2016 9:01 am

I think anybody with any sense of common sense knows that the Constitution was intended to be a living, malleable document and not holy writ. After all, why include a mechanism (as arduous as it is) for change if otherwise?

The problem is, and it's not strictly a GOP problem, is that the Constitution is a lot like a Rorschach Test (I know I spelled that wrong . . . but too lazy to fix it). You end up seeing different things looking at the same prompt. And it says as much about who you are intellectually as it does about the document what you see and how you understand it. The second amendment is a prime example of that, really. It's actually comedic to me to watch folks twist it.

As for your GOP comment, maybe we could leave that out of this thread? Do we need another thread for GOP bashing?
User avatar
hamlet
Ringbearer
 
Posts: 10559
Joined: Sun Apr 29, 2001 12:01 pm
Top

Re: Philosophy on Constitutional interpretation

Postby portia » Tue Feb 16, 2016 9:10 am

I agree on your comment about the GOP (although as a registered Republican, i have more right to it than most).

I guess the issue is "How malleable?"
User avatar
portia
Ringbearer

 
Posts: 10841
Joined: Mon Dec 22, 2003 9:57 pm
Location: Lost in the forest
Top

Re: Philosophy on Constitutional interpretation

Postby hamlet » Tue Feb 16, 2016 1:56 pm

portia wrote:I agree on your comment about the GOP (although as a registered Republican, i have more right to it than most).

I guess the issue is "How malleable?"


I never registered as a Republican, or as an anything. I suppose that makes me independent, though I have always maintained that I am a Conservative. I'm sick unto DEATH though of getting tarred with the same brush folks use on Trump et. al. and having opinions that aren't mine attributed to me. Plus, it's wildly un-conducive to intelligent discussion.


As for your question, my answer is this: as malleable as it needs to be. Of course, there may come a time when the changes are so extensive that we've effectively formed another government, but it would have been an organic growth rather than a . . . uhm . . . "schismatic" one. Sorry, I'm trying to come up with a term and I just had to pick one, so there.

The Constitution itself didn't even pass a preliminary muster without the Bill of Rights being tacked on which in and of itself is a very telling and revealing thing about both the nature of the folks doing the writing and approving of the document and the inherent thought processes behind how the US actually works as opposed to, for argument's sake, the UK's on the ground pre-conceived conceptions. The Bill of Rights, better than any other thing, shows just how Americans view their relationship to the government: specifically, that the government DOES NOT GRANT RIGHTS and is specifically prohibited from impinging upon the rights that citizens already have. The Bill of Rights does not give us the right to free speech as, I believe is the case in the UK, but explicitly limits the power of the government to trample upon the pre-existing right to express yourself free from consequences under the government. In a strange way, it's something that cleaves a little closer to Enlightenment ideals than having rights granted to citizens by the government.

Of course, these impressions are changing due to shifting political landscapes and, in no small part, ignorance on the part of the general electorate. I couldn't tell you how many people in the US have never actually read the Constitution, but I strongly suspect that number to be distressingly high. And every single one of them "knows" more and better than the best constitutional scholar who has made it their life's work to understand the writings that form the basis of our government. This holds true for "both sides" I think. I really miss the day when Civics Class was a thing.

The defining document of the US government was, I believe, designed to facilitate a change in government in a manner other than one measured in casualties and ammunition. Whether that would be minor adjustments or wholesale alterations, the mechanism is there and the only thing standing in the way is the persuasive power of the representatives we elect, but people are strangely afraid of that idea.
User avatar
hamlet
Ringbearer
 
Posts: 10559
Joined: Sun Apr 29, 2001 12:01 pm
Top

Re: Philosophy on Constitutional interpretation

Postby Denethor » Sun May 01, 2016 3:03 pm

Originalism is only viable in a situation where three amendments are going through every year. Since it is so hard to amend the US constitution, a Living Tree approach is practically inevitable.

The problem with that though is that you end up having your constitution determined by a bunch of unelected judges - what matters is less what is written, and how these judges choose to interpret. And history has shown that judges can interpret stuff very oddly (Lochner? Plessy v. Ferguson?).

Frankly, it's why I'm more than happy with my own country's constitutional arrangements - specifically an unwritten constitution where stuff happens because of tradition.
User avatar
Denethor
Ranger of the North

 
Posts: 4526
Joined: Fri Dec 01, 2000 9:33 pm
Location: New Zealand
Top

Re: Philosophy on Constitutional interpretation

Postby hamlet » Mon May 02, 2016 6:53 am

Unelected judges don't determine the content of the constitution, though the Supreme Court of the US has the authority to interpret it.

And, in the end, the ability of the general un-elected electorate to alter the constitution is not a flaw, but a feature of the Constitution of the US. Basically, again, revolution without dead bodies on the floor.

It's also why the US Supreme Court has final authority as a check against the idiocy of the populace.
User avatar
hamlet
Ringbearer
 
Posts: 10559
Joined: Sun Apr 29, 2001 12:01 pm
Top

Re: Philosophy on Constitutional interpretation

Postby Denethor » Wed May 11, 2016 5:31 am

hamlet wrote:Unelected judges don't determine the content of the constitution, though the Supreme Court of the US has the authority to interpret it.

And, in the end, the ability of the general un-elected electorate to alter the constitution is not a flaw, but a feature of the Constitution of the US. Basically, again, revolution without dead bodies on the floor.

It's also why the US Supreme Court has final authority as a check against the idiocy of the populace.


Interpretation *is* content.

As for the idiocy of the populace, I'd point to the likes of Dred Scott, Lochner, and Plessy (or more recently, Citizen United) as evidence that the learned elite have the same prejudices as the great unwashed.
User avatar
Denethor
Ranger of the North

 
Posts: 4526
Joined: Fri Dec 01, 2000 9:33 pm
Location: New Zealand
Top

Re: Philosophy on Constitutional interpretation

Postby hamlet » Wed May 11, 2016 7:55 am

Denethor wrote:
hamlet wrote:Unelected judges don't determine the content of the constitution, though the Supreme Court of the US has the authority to interpret it.

And, in the end, the ability of the general un-elected electorate to alter the constitution is not a flaw, but a feature of the Constitution of the US. Basically, again, revolution without dead bodies on the floor.

It's also why the US Supreme Court has final authority as a check against the idiocy of the populace.


Interpretation *is* content.

As for the idiocy of the populace, I'd point to the likes of Dred Scott, Lochner, and Plessy (or more recently, Citizen United) as evidence that the learned elite have the same prejudices as the great unwashed.


The learned are just as much a part of the electorate as the ignorant. Ignorance is universal.
User avatar
hamlet
Ringbearer
 
Posts: 10559
Joined: Sun Apr 29, 2001 12:01 pm
Top

Re: Philosophy on Constitutional interpretation

Postby Numenohtar » Wed Oct 05, 2016 8:37 pm

This Talmudic attachment to the Constitution has been a major setback for the historic American nation. It likely owes to the LARPing of early Puritan settlers as Jews of the Old Testament. This has resulted in some very bizarre tendencies; large-scale circumcision, lots of Hebrew names, some extremely bizarre Protestant offshots, etc.

America does not have a mythology the way the nations of Old Europe do (though it does have a fascinating folklore), so extra weight is allotted to the Revolution and the Constitution. Thus, the political in the US is limited to classical liberalism, a worthless ideology that views human beings not in an organic and communitarian fashion, but as interchangeable producer-consumers.
User avatar
Numenohtar
Citizen of Imladris
 
Posts: 21
Joined: Sun Mar 22, 2015 3:34 pm
Top

Re: Philosophy on Constitutional interpretation

Postby hamlet » Thu Oct 06, 2016 7:56 am

Well, the Constitution is, by definition, the highest law of the land. It's not an irrational attachment to it, it's the governing document of the nation.
User avatar
hamlet
Ringbearer
 
Posts: 10559
Joined: Sun Apr 29, 2001 12:01 pm
Top

Re: Philosophy on Constitutional interpretation

Postby MerriadocBrandybuck » Tue Oct 18, 2016 6:51 am

wrong thread...
User avatar
MerriadocBrandybuck
Ranger of the North

 
Posts: 4207
Joined: Tue Sep 25, 2001 9:09 am
Top


Return to Philosophy: Councils of Manwë

Who is online

Users browsing this forum: No registered users and 44 guests