US Constitutional Interpretation

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Pew Research just released a study documenting US views on how to interpret the constitution:



Source: http://www.pewresearch.org/fact-tank/20 ... stitution/

As evident above, there is a stark Conservative/Liberal divide on how to interpret the constitution. Furthermore, there also appears to be significant educational, racial, generational and religious differences.

White Evangelical Protestants tend to be massively in favour of constitutional originalism, for instance, while the opposite is true for the religiously unaffiliated.

However, it should be noted that Pew divides the scope of constitutional interpretation into only two overall categories ("Meant in current times" vs. "Meant as originally written").

Several legal scholars operate with up to 7 different types of constitutional interpretation:
http://www.thefederalistpapers.org/prin ... rpretation
http://www.law.cornell.edu/anncon/html/ ... _user.html

These are (See explanations in the first link above, with some variations in labelling):

• Textual
• Historical
• Functional
• Doctrinal
• Prudential
• Ethical
• Natural

Another problem is that the constitution itself is silent on how to interpret it. This is particularly evident by the fact that the very institution of judicial review is established by case law (in the famous Marbury v. Madison opinion) and not mentioned in the Constitution itself.

See the following article for a further elaboration of this point:
http://apps.americanbar.org/publiced/co ... Intent.pdf

Please discuss.

Is the wording so vague that is has to be interpreted?

Only to the extent that ALL wording in EVERY human communication is imprecise. But thats imprecise enough. On top of that the founding fathers drafted it when the nation was a slave owning agregarian modest sized small population collection of settlements clinging to the eastern seaboard of the continent on the eve of the Industrial revolution. How their words apply to life in the post industrial continental sized USA of today- with internet, and universal sufferage, and air travel, etc. and much else that the founding fathers could not imagine- does indeed demand a lot "interpretation".

Could you give some examples?

I have this conversation sometimes with family members and friends who state and believe wholeheartedly that the Constitution for the United States of America* means whatever the People think it means. I ask them if such intellectual relativism also applies to their retirement accounts or personal ideas (including relevant laws). Should the president, the Congress or the Supreme Court (or even a majority of voters) be able to "reimagine" your property rights to mean that your retirement account really belongs to the Social Security Administration (they have tried that logic more than once)? Don't worry, the SSA workers who take your savings will promise to give it back to you a little bit at a time ... while they earn the interest on the balance. After all, it isn't your money. Oh, you have an opinion about that?!? Watch it now. Don't get uppity. You don't have the right to your opinion about us because we say that is what "free speech" means.

If U.S. public servants (they LOVE to forget that is really what they are, but President Jefferson called it the best title he ever had) can interpret the Constitution as something it isn't, why wouldn't they be able to do the same thing to your life? The Founders meant for the Constitution to be a firewall of protection against public servants doing exactly that -- and nothing more.

*The Constitution for the United States of America was named such by itself; it isn't a Constitution of the United States of America.

History is full of examples.


Exactly.

An exmple was about to use was "Congress shall make no laws abridging freedom of the press".

First of all that "congress shall not .. ( use religion as a test for public office..etc) has been interpreted as meaning "the government"- regardless of which branch.

But also - like any other pronouncement- how does it apply to every situation in the real world?

What about highschool kids running a school paper? Do they get to print whatever they want? Or do they have to obey what the principal says they should print?

The supreme court decided that since "congress" means "the government" , and that since public schools are run by the government (though strictly speaking -the dept of education is part of tghe executive branch, and not congress) that the school administrators/principals are part of "the government" and thus they can not abridge the students freedom of the press. But students in private schools are not so protected-they have to do what the elders tell em to print.

So public school students have freedom of the press, but not private school students.

Maybe thats sensible, or not. But the point is that - taking the word "congress"- and turning it into "your local public highschool" takes a certain amount Jazz muscianship style interpretation. They could have gone other ways with it.But those other ways would also require a certain imagination. And its not even because anyone has an agenda. Its that the shinning words of the past sages have to be shaped to fit the ever changing messy real world.

I think both have the exact same freedom. The only difference is that the private school's principal is free to act as an editor.

The Constitution plus the amendments take up only 21 pages on standard size paper, with normal font and fairly wide margins:

http://www.usconstitution.net/const.pdf

The original Constitution just takes up only 12 pages (or actually a single piece of parchment when it was written).

It was meant as a rough outline of the government and believe it or not I cannot think of a single instance where the Constitution defines any of the words it uses. The U.S. Constitution is famous for its brevity and creating a complex system of interpretation due to the fact that it only touches on the tip of the iceberg for the larger concepts that underlie its provisions.

There's also the fact that when the Constitution is amended, the amendments only ever go after what has already been worded, so you have to think about the impacts newer amendments have on the original text and the previous amendments. (For example, I think it's been determined that the 14th amendment implicitly and partially restricts the sovereign immunity of each state, which immunity is made clear that states possess by the 11th amendment, when it comes to civil rights issues. (In the 14th amendment, Equal Protection is something that Congress is granted the power to enforce.)

A constitution is meaningless if it can be reinterpreted to fit the times, what is even the point to it then other than to give an aura legitimacy to tyrannical system? The constitution isn't a granting of rights by the government, it is suppose to protect the rights from the government. There is a process to amending the constitution, it is not set in stone forever but it should never be changed by 9 unaccountable judges, what type of democracy is that?

Well, thinking of the Commerce Clause (particularly as it relates to interstate matters), whose broader interpretations nowadays include a lot of things, I wonder if the change in the circumstances didn't require a change in the interpretation of the Clause.

The Clause was written in a time when stuff that happened in one state didn't really impact much on other states, travel was slow-going and people tended to stay in their states, and did not have the same amount of trade between the states.

With the advent of the 1930s and beyond, however, it is much more difficult for something that happened in one state to not affect another, people move between states a lot, and there is absolutely massive trade between them. Because of that, it seems to me, the interpretation needed to change.

I agree, and I doubt that you would disagree with my opinion that terms like "free speech" and "bear arms" lose nothing by being applied to current technologies. I don't believe that it is reinterpreting the Fourteenth Amendment guarantee of equal protection when we read it plainly as providing equal protection to "[a]ll persons born or naturalized in the United States" including, say, same-sex couples. It is the unfounded interpretations like that of the "general welfare" and "commerce" clauses that I and others find intolerable.

49 and 46 percent. that seems more divided or split or 50/50 then most. if i poll people and 51 say yes and 49 say no I would say the people are closely divided on this matter not most say yes.

You must be huffing propane!

Contradicting my point, and then repeating the very same point you just contradicted!

Sleep it off!

You are correct: private school principals are allowed to be editors- which effectively negates any freedom of the press of the students. Public school principals are not allowed to be editors, so the students dont get censored. So public school students have more freedom of press. Exactly what I said!

There are many contradictions inherent in the concept of "government schools." However, I don't believe that high school kids, putting together a school paper with school equipment on school property, qualify as "the press." The school helps them to do that as part of their education. And just as in real journalism, he who pays the piper has the right to call the tune.

The fact that high school students are mostly minors further complicates the issue. Minors are not held to be in full command of their rights.

Now, if college students, on their own time, off school property, and using their own resources, want to publish a private newsletter or blog ? that is a different issue.

Correct.