Interpreting the Constitution

fromtheright · Aug 2, 2006

What should guide the interpretation of the Constitution? The text only? Original intent? Original intent of whom: the Framers in Philadelphia, the ratifying conventions? Should the interpretations in the early Congresses play any role? Should the writings of the Founders be consulted? Which Founders? Why not others? Should Federalist views only be sought, or also anti-Federalists? Should natural law be consulted? What pre-Revolutionary English history/writings be considered? Is the Constitution a "living document" that grows and changes with the times? Is there an "unwritten Constitution" that should be consulted?

El_Guero · Aug 2, 2006

Brother!

You are starting up the "mother of all freedom of speech wars".

Original intent of course. As preached by our Baptist preacher ancestors even more naturally. And interpreted by their descendent's with my interpretation being best - almost all of the time.

:type: I was wrong once. At first I thought I was wrong, then I realized I was right. So I was wrong only as long while I thought I was wrong.
:saint:

billwald · Aug 2, 2006

The USofA is governed by case law, not the Constitiution, because that is how the Constitution was written. If the writers didn't want the Supreme Court to be the ultimate authority then they could have authorized Congress to over rule the Court with a super majority.

fromtheright · Aug 2, 2006

bill, I'll make a note of your opinion when I post a thread asking if the Constitution is in force or if our government is following it, but please feel free to answer: as to understanding the meaning of the Constitution in response to particular problems or cases that are presented, what is the proper interpretive tool in ascertaining its meaning and how it applies to a situation?

El_Guero · Aug 2, 2006

Bill,

I point out . . . amendments . . . bill of rights being the most recognized. So the Framers intended the Constitution to be modified by the Congress & the people. They did not intend democracy without a rudder.

But, during the absence of new guidance, the Framers intended the Constitution to be interpreted by their situation and intent. They should not be interpreted in light of our experience and our intent.

billwald said:

The USofA is governed by case law, not the Constitiution, because that is how the Constitution was written. If the writers didn't want the Supreme Court to be the ultimate authority then they could have authorized Congress to over rule the Court with a super majority.
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The Galatian · Aug 2, 2006

The men who wrote the Constitution were well aware that they couldn't put everything in the document, and that it wouild have to change. They tried to put as much play in the wording as they could, without making it easy for a tyrant to abuse it.

Jefferson himself, the strictest of constructionists, found in the penumbra of the Constitution, the right to make the Louisiana purchase, even though it does not specifically authorize such a thing.

fromtheright · Aug 3, 2006

Galatian,

They tried to put as much play in the wording as they could, without making it easy for a tyrant to abuse it.

Jefferson himself, the strictest of constructionists, found in the penumbra of the Constitution, the right to make the Louisiana purchase, even though it does not specifically authorize such a thing.
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I disagree with you.

As to the play in the wording, I believe they wanted to avoid too much play, at least, and believed in a strictly limited central government, as indicated by the signature line in my posts (my favorite Founder quote), re the chains of the Constitution. I realize, though, that the Kentucky and Virginia Resolutions were rejected by the other states, but I believe the Founders believed strongly that the Constitution was to provide a strong barrier to central government power.

Although he wound up doing it without an amendment, Jefferson was torn in his decision re the Louisiana Purchase and felt that an amendment was in fact necessary but found himself confronted with a "once in a lifetime sale".

The Galatian · Aug 3, 2006

Jefferson's argument was that the authority to make treaties gave him the power to buy land from other nations.

In other words, he did some interpreting as to the spirit of the document, even if the authority wasn't explicitly stated.

El_Guero · Aug 3, 2006

Right on! :thumbs:

fromtheright said:

Galatian,

I disagree with you.

As to the play in the wording, I believe they wanted to avoid too much play, at least, and believed in a strictly limited central government, as indicated by the signature line in my posts (my favorite Founder quote), re the chains of the Constitution. I realize, though, that the Kentucky and Virginia Resolutions were rejected by the other states, but I believe the Founders believed strongly that the Constitution was to provide a strong barrier to central government power.

Although he wound up doing it without an amendment, Jefferson was torn in his decision re the Louisiana Purchase and felt that an amendment was in fact necessary but found himself confronted with a "once in a lifetime sale".
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fromtheright · Aug 3, 2006

Jefferson's proposal, following Madison's recommendation:

Louisiana, as ceded by France to the US. is made apart of the US. It's white inhabitants shall be citizens and stand, as to their rights and obligations on the same footing with other citizens of the US. in analogous situations.
Save only that, as to the proportion thereof lying North of the latitude of the Arcansa river, no new state shall be established, nor any grants of land made therein, other than to Indians in exchange for equivalent portions of land occupied by them, until an amendment to the Constitution shall be made for that purpose.
Florida also, whensoever it may be rightfully obtained, shall become a part of the US. It's white inhabitants shall thereupon be citizens, and shall stand as to their rights and obligations on the same footing with other citizens of the US. in analogous circumstances.
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In his letter to Gallatin of Jan. 13, 1803, expressed doubts about taking that territory into the U.S. positing it "safer not to permit the enlargement of the Union but by amendment of the Constitution."

Included in his papers was a proposed Amendment to the Constitution:

The province of Louisiana is incorporated with the U. S. and made part thereof. The rights of occupancy in the soil, and of self government, are confirmed to the Indian inhabitants, as they now exist. Pre-emption only of the portions rightfully occupied by them, & a succession to the occupancy of such as they may abandon, with the full rights of possession as well as of property & sovereignty in whatever is not or shall cease to be so rightfully occupied by them shall belong to the U. S.
The legislature of the Union shall have authority to exchange the right of occupancy in portions where the U. S. have full right for lands possessed by Indians within the U. S. on the East side of the Missisipi: to exchange lands on the East side of the river for those of the white inhabitants on the West side thereof and above the latitude of 31 degrees: to maintain in any part of the province such military posts as may be requisite for peace or safety: to exercise police over all persons therein, not being Indian inhabitants: to work salt springs, or mines of coal, metals and other minerals within the possession of the U. S. or in any others with the consent of the possessors; to regulate trade & intercourse between the Indian inhabitants and all other persons; to explore and ascertain the geography of the province, its productions and other interesting circumstances; to open roads and navigation therein where necessary for beneficial communication; & to establish agencies and factories therein for the cultivation of commerce, peace & good understanding with the Indians residing there.
The legislature shall have no authority to dispose of the lands of the province otherwise than as hereinbefore permitted, until a new Amendment of the constitution shall give that authority. Except as to that portion thereof which lies South of the latitude of 31 degrees; which whenever they deem expedient, they may erect into a territorial Government, either separate or as making part with one on the eastern side of the river, vesting the inhabitants thereof with all the rights possessed by other territorial citizens of the U. S.
Louisiana, as ceded by France to the U S. is made a part of the U S. Its white inhabitants shall be citizens, and stand, as to their rights & obligations, on the same footing with other citizens of the U S. in analogous situations. Save only that as to the portion thereof lying North of an East & West line drawn through the mouth of Arkansa river, no new State shall be established, nor any grants of land made, other than to Indians in exchange for equivalent portions of land occupied by them, until authorised by further subsequent amendment to the Constitution shall be made for these purposes.
Florida also, whenever it may be rightfully obtained, shall become a part of the U S. Its white inhabitants shall thereupon be Citizens & shall stand, as to their rights & obligations, on the same footing with other citizens of the U S. in analogous situations.
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Also:

Jefferson's Cabinet members argued that the constitutional amendment he proposed was not necessary. As time for ratification of the purchase treaty grew short, Jefferson accepted his Cabinet's counsel and rationalized: "It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good."
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SOURCE

Jefferson also worried about the constitutionality of the acquisition, for the Constitution did not specifically grant the federal government the authority to acquire more territory, and he considered an amendment to the Constitution.
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SOURCE

Jefferson, always the strict constructionist, feared that the purchase would be deemed unconstitutional. Therefore, he personally drafted a constitutional amendment authorizing the national government to acquire new lands and allowing for the indefinite settlement of the new territory. However, Jefferson and his colleagues feared the time it would take to adopt a new amendment might allow the deal to slip through their fingers. Urged by fellow Republicans, he dropped the amendment and submitted the treaty that provided for the Louisiana Purchase to the Senate, where it was speedily ratified.
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SOURCE

President Jefferson, however, was in a quandary. He had always advocated strict adherence to the letter of the Constitution, yet there was no provision empowering him to purchase territory. Given the public support for the purchase and the obvious value of Louisiana to the future growth of the United States, however, Jefferson decided to ignore the legalistic interpretation of the Constitution and forgo the passage of a Constitutional amendment to validate the purchase. This decision contributed to the principle of implied powers of the federal government.
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SOURCE

In October, 1803, Congress met. Jefferson himself was a strict constructionist of the Constitution, and believed in states rights. He held that Congress had only such powers as were definitely delegated to it and such as were necessary to carry out the delegated powers. He believed that this treaty providing for the incorporation of foreign territory was in violation of the Constitution. He held at first that an amendment to the Constitution would be necessary before action could be taken upon the treaty. But he was confronted with a practical issue of grave and immediate moment. Statesmen holding views as extreme as his own argued for the constitutionality of the acquisition. Jefferson yielded his opinions to the practical exigencies of the situation, believing, as was the case, that the popular view would approve his course. Federalists, as well as Republicans, agreed that the United States could acquire territory.
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SOURCE

Thomas Jefferson to John Breckinridge, 12 August 1803:

The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The executive, in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it and throw themselves on their country for doing for them, unauthorized, what we know they would have done for themselves had they been in a situation to do it.
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SOURCE

El_Guero · Aug 3, 2006

FTR

Pretty good studies!

Wayne

fromtheright · Aug 3, 2006

I can't take any credit, most of it was just some quick Internet searches, mostly to counter Galatian's point re Jefferson's view on amending the Constitution; it turns out we're both right, I think, as he did, as Galatian pointed out, proceed to send it to the Senate. IMO, the treaty power rationalization wasn't what he really believed, though.

The Galatian · Aug 3, 2006

So from the start, the Constitution was interpreted in light of the intent of the founders, not the letter of the Law.

Jefferson concluded that the right to make treaties was sufficient, on the advice of others.

Gallatin went on to advise Jefferson that the United States as a nation has the right to acquire territory and that when the territory was gained by way of treaty the same constituted authorities in whom the treaty making power is vested have a constitutional right to sanction the acquisition, and once a territory has been acquired Congress has the power of either of admitting into the Union as a new state, or of annexing to a State with the consent of that state, or of making regulations for the government of such territory. This interpretation of the Constitution was perhaps as liberal and broad as the Federalists themselves might have made. Gallatin was not alone in his interpretation of the Constitution. Thomas Paine took the occasion to voice his opinion on the matter in a letter to Jefferson. Paine's letter, along with the position that Gallatin held, slowly worked to change Jefferson's mind on the constitutional issue. He still held to the idea that an amendment to the Constitution would be necessary to incorporate the Louisiana Territory into the Union. This was due to Jefferson's strict constructionist views towards the constitution. Accordingly, Jefferson drafted two amendments to the Constitution, but finally on advice of his constituents never submitted either of them to Congress for debate.
http://www.freeessays.cc/db/1/auj121.shtml

Obviously, the Federalists (one of whom is considered the father of the Constitution) were quite open to such an interpretation.

El_Guero · Aug 3, 2006

http://www.bpnews.net/bpnews.asp?ID=22950

George Mason -- rightfully called the Father of the Bill of Rights -- insisted that the individual sovereignty of American citizens be protected in the new nation.

The Virginia Declaration of Rights, penned by Mason and adopted June 12, 1776, is said to be the first American document to both limit the government’s authority and strengthen citizens’ rights. This important document informed the Declaration of Independence, the U.S. Constitution and eventually the U.S. Bill of Rights.

Mason, a Virginia delegate to the Constitutional Convention in Philadelphia, opposed ratification of the U.S. Constitution because it lacked a bill of rights and failed to lay out a plan for ending slavery. Fearful of an omnipotent federal government, he said there was never an “instance of a general National Government extending over so extensive a country ... where the people retained their liberty.”

Despite the opposition of Mason and other anti-federalists, the U.S. Constitution was ratified. Yet during the first session of Congress, James Madison introduced a bill of rights, closely based on Mason’s proposals during the Constitutional Convention, which was eventually ratified and remains a crucial part of the Constitution today.
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El_Guero · Aug 3, 2006

OK

Back to what I was a sayin'! The state of Virginia (not Texas) had a key role in the bill of rights and the first ammendment.

El_Guero · Aug 3, 2006

http://www.mainstreambaptists.org/mbn/Patriots.htm

In the years prior to the American Revolution, Baptists endured severe religious persecution -- particularly in Virginia. When the Continental Congress declared independence from England, Baptists swelled the ranks of the revolutionary army. In their mind, the fight for independence and the struggle for religious liberty were one and the same. That is why, after the war, Baptists refused to approve the Constitution until the first amendment was added to separate church and state and guarantee religious liberty for all persons.

Madison's understanding of the Baptist position regarding church and state is recorded in a letter he wrote to James Monroe in the midst of the fight against Henry's bill. Concerning support and opposition to the bill he wrote:
"The Episcopal clergy are generally for it. . . . The Presbyterians seem as ready to set up an establishment which would take them in as they were to pull one down which shut them out. The Baptists, however, standing firm by their avowed principle of the complete separation of church and state, declared it to be "repugnant to the spirit of the Gospel for the Legislature thus to proceed in matters of religion
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John Leland sent a letter to Madison on February 28, 1788 giving ten reasons why he objected to the Constitution without a bill of rights. His strongest objection has to do with religious liberty:
"What is clearest of all -- Religious Liberty, is not sufficiently secured, No Religious test is Required as a qualification to fill any office under the United States, but if a Majority of Congress with the President favour one System more then another, they may oblige all others to pay to the support of their System as much as they please . . . .
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El_Guero · Aug 3, 2006

Now I know that is what I remember history like . . . I had forgotten SS and Trng Union! AND John T. Christian's Baptist History!

as has been seen, the Baptists were much persecuted. At their baptisms they were annoyed, and on one occasion a clergyman of the Establishment rode into the water and badgered them. They had been whipped, branded and banished. Now there was a systematic effort made to entirely overthrow them.
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‘May it please your worships, these men are great disturbers of the peace; they cannot meet a man upon the road, but they must ram a text of Scripture down his throat.’ Mr. Waller made his own and his brethren’s defense so ingeniously that they were somewhat puzzled to know how to dispose of them. They offered to release them if they would promise to preach no more in the county for a year and a day. This they refused; and, therefore, were sent into close jail. As they moved on, from the court house to the prison, through the streets of Fredericksburg, they sung the hymn, ‘Broad is the road that leads to death
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"When the letter came to the attorney he would have nothing to say in this affair. Waller and the others continued in jail forty-three days, and were discharged without conditions. While in prison they constantly preached through the gates. The mobs without using every exertion to prevent the people from hearing, but to little purpose. Many heard, indeed, upon whom the Word was in power and demonstration.
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http://www.pbministries.org/History/John%20T.%20Christian/vol2/history2_part2_03.htm

fromtheright · Aug 3, 2006

EG,

I'm going to stay out of that particular debate on this thread. We have been discussing this subject on THIS THREAD and I don't like to duplicate discussions, though y'all are more than welcome to. I am limiting my discussion on this thread to the subject of the OP, which is methods/sources to be used in interpreting the Constitution.

Galatian,

Slight historical difference with your statement that

Obviously, the Federalists (one of whom is considered the father of the Constitution) were quite open to such an interpretation.
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By that time, Madison no longer considered himself a Federalist but rather a leader, along with Jefferson, of the Republicans.

El_Guero · Aug 3, 2006

Then how do we discuss the interpretation of the constitution if we do not discuss the background that the Framers intended including the reason for the Bill of Rights?

humbly your servant.

fromtheright · Aug 3, 2006

What I was looking for in this thread was

What should guide the interpretation of the Constitution? The text only? Original intent? Original intent of whom: the Framers in Philadelphia, the ratifying conventions? Should the interpretations in the early Congresses play any role? Should the writings of the Founders be consulted? Which Founders? Why not others? Should Federalist views only be sought, or also anti-Federalists? Should natural law be consulted? What pre-Revolutionary English history/writings be considered? Is the Constitution a "living document" that grows and changes with the times? Is there an "unwritten Constitution" that should be consulted?
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rather than a discussion of origin or reason(s) for the Bill of Rights. Lots of folks, including myself claim to be originalists but there are different varieties such as textualists, etc. There are serious differences even between Scalia and Thomas, and between them and Rehnquist. What I'm looking for on this thread is what tools should be used to determine what the Constitution or particular phrases mean when applied to real issues or even more broadly.

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