The democratic check on the Supreme Court is very limited and onerous, requiring Constitutional amendment. If that were your attitude, you wouldn't care who sits on the Court, considering we can just undo it with an amendment. — Hanover

I think you must be fully aware that the difficulty in amending the Constitution is the very reason people on both sides of the aisle have appreciated actions of the Court to set straight wrongs. I'm asking out of genuine curiosity. Do you not know that?

This is the crux of the entire debate: What is the appropriate role of the Court and how does it affect our democracy? If we are being ruled by 5 justices, we're not an effective democracy. The role of Congress is to consider matters of policy. — Hanover

As I said, the effect of the way we've been doing it has been overwhelmingly beneficial. Do you disagree?

No. I asked for the cite to it because I couldn't find the specific statute you were alluding to. I trust your statement, but I'd like to see it for academic sake. It'd be interesting to see how their courts have dealt with such ancient references. — Hanover

Oh. I either learned that from a book about the revolution or a book about Jefferson. I went through a huge Jefferson phase a few years back. I'll see if I can find it.

That's like saying that because historical people referred to the mentally ill as being possessed by demons then the meaning of the phrase "possessed by demons" at that time meant "mentally ill". But of course that's wrong. It meant what it means now. They were just wrong to refer to the mentally ill as being possessed by demons — Michael

This isn't really analogous. We would derive their meaning through use, and mentally ill would refer to those with particular behaviors. Their definition of being possessed by demons is empirically incorrect. If I declare X, Y, and Z "liberties," we can arrive at their underlying definition by analyzing how they use that term, but unfortunately there is no empirical reference for us to determine if their self-proclaimed meaning were correct.

And historical people didn't refer to slavery as being immoral. Does it then follow that the meaning of the word "immoral" has changed, and that slavery isn't immoral as they meant by the word? Or is it that the meaning is the same, and they were just wrong to not refer to slavery as immoral? — Michael

If they offer a definition of "moral" that is at odds with how they're using it, then we can say their stated definition is wrong. If you're equating "liberty" with "moral," I think you're on to something, and my objection is very clear that 5 people don't need to be philosopher kings telling 100s of millions of Americans what is right and wrong. That's what the ballot box is for.

No, I'm deriving it from the facts that a) liberty is a right and b) sodomy is a liberty. — Michael

What is the principle you adhere to that I can use to determine what is a liberty though? Is cat ownership a liberty and why or why not?

What is the principle you adhere to that I can use to determine what is a liberty though? Is cat ownership a liberty and why or why not? — Hanover

Planned Parenthood v. Casey states that "matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." That seems like a good answer. It likely excludes cat ownership and includes consensual vaginal intercourse between a husband and wife.

... my objection is very clear that 5 people don't need to be philosopher kings telling 100s of millions of Americans what is right and wrong. That's what the ballot box is for. — Hanover

And when a majority of the population are in favour of mistreating some minority? We just have to accept it? A Supreme Court being able to rule that something not explicitly enumerated as a right in the Constitution is nonetheless implied by something that is is a useful counter to the injustice of a tyranny of the majority.

Mm, that sounds right. I certainly can't think of any (non-religious) principle that would cover regular sexual intercourse and not also cover oral and anal sexual intercourse. It must be a package deal.

Well, we'll see what happens. The Supremes when led by the conservative justices are capable of extremely silly decisions like Citizens United, converting money into speech, and the Hobby Lobby one which sanctified, as it were, the proposition that business corporations may have religious beliefs entitled to constitutional protection, but there's always hope. As to interpretation of the Constitution, I've always felt the "original intent" approach to be a kind of insult to the framers--as if they were too stupid to comprehend that the future might bring profound changes to the United States and its society which could make other factors relevant in the interpretation of the Constitution. Interpretation of the Constitution shouldn't be an "either or" process.

Well said.

You appear to be a Trump fan. Tell us something - anything - good about Trump.

One view: not be any means the only one. I am curious how the country decides which ones to follow do you vote on it or wait for the see saw balance of the SC take its course?

As to interpretation of the Constitution, I've always felt the "original intent" approach to be a kind of insult to the framers--as if they were too stupid to comprehend that the future might bring profound changes to the United States and its society which could make other factors relevant in the interpretation of the Constitution. — Ciceronianus the White

Worse than that. "Original intent" is inaccessible. In documents by committee more obviously so. Scalia's insistence on it, and in general conservative's referencing and relying on it, is simply a crime of ignorance. Crime because I'm sure that both technically and in their heart-of-hearts they know it's wrong but push it as a plausible lie, something they're good at. But it's a difficult academic distinction to understand that original intent is gone. Still, though, no one takes it on in the national conversation, and that itself is not good.

I said conservatives. I misspoke. I should have said right-wing radicals. Or, to call them what they are, American fascists. True conservatives, and most other sane people, find refuge in the Democrat party.

As the only bastion of democracy (US - style, as idealized and struggled for), the Democrat party is under attack. When does it become war? When do the tactics of the fascist right constitute acts of war? We have lies, fraud, abuse, crimes; do we need a murder?

One of the problems with the Constitution is that it is 200+ year old document written to meet the problems that could then be seen in late 18th century governance. While it needed to be, and has been amended, it has not been re-conceived for a much different world that now exists.

We could call a constitutional convention and write a new constitution. After all, it isn't only abortions that are at issue.

In a line of decisions going as far back as 1891, the Supreme Court recognized a right of privacy and bodily integrity, applying it to activities related to marriage, procreation, family relationships, and child rearing and education. Only in 1965 In Griswold v. Connecticut (1965), the Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy. The court extended that understanding to unmarried persons in 1972. — Wikipedia

Maybe the Supremes could decide that, No, actually we think the state does have an interest in suppressing contraception that over-rides the protection of bodily integrity, liberty, and a right to privacy.

Anybody up for attending a constitutional convention in say, 5 years (it would take a while to call and organize one)? My guess is that the descendants of the original social, economic, and political arbitraitors would work VERY HARD to make sure there was a decidedly less permissive cast to any new constitution.

Worse than that. "Original intent" is inaccessible. In documents by committee more obviously so. Scalia's insistence on it, and in general conservative's referencing and relying on it, is simply a crime of ignorance — tim wood

There are two schools of thought here, the "origanlist" and "revisionist" views. Having a thought is not a crime, ie "thoughtcrime". Judge Scalia is entitled to his opinion. It's no his fault. People should know better than to elect a conservative President.

A thoughtcrime is an Orwellian neologism used to describe an illegal thought. The term was popularized in the dystopian novel Nineteen Eighty-Four by George Orwell, first published in 1949, wherein thoughtcrime is the criminal act of holding unspoken beliefs or doubts that oppose or question Ingsoc, the ruling party. In the book, the government attempts to control not only the speech and actions, but also the thoughts of its subjects.

Wikipedia

Worse than that. "Original intent" is inaccessible. In documents by committee more obviously so. Scalia's insistence on it, and in general conservative's referencing and relying on it, is simply a crime of ignorance. — tim wood

They don't (or at least Scalia didn't) rely on original intent. They rely on original meaning.

It likely excludes cat ownership and includes consensual vaginal intercourse between a husband and wife. — Michael

Cats are property, so your right to holding them is protected like all other property.

Cats are property, so your right to holding them is protected like all other property. — Benkei

I'm talking about the right to liberty. The right to cat ownership might be implied by the right to property, but not by the right to liberty (as understood in Planned Parenthood v. Casey), and Hanover was asking about what the right to liberty covers.

We need to place the Constitution in historical perspective to understand intent. Before it was written, Royalty and centralized government controlled all aspects of life. The King, such as in the case of the Kind of England, could impose one set of religious standards on his subjects and use the church and faith to leverage citizens for power and profit. The self serving king was against religious freedom. Instead the church was a propaganda machine for the king.

There was essentially two classes; royal/upper and peasant. Royalty was based on bloodline and not merit, which meant leadership would often not be qualified, and would often make irrational and selfish demands at the expense of the individual, who had no upward path or say.

What was different about America was the ideas of God given rights; individual liberties, above the rules of the king or queen and big government. Among these universal rights were life, liberty and pursuit of happiness. Before the Constitution, royalty and central government could override these to perpetuate its own power. With the Constitution, the role of government was to become much more limited and was supposed to play a support role toward these ends. The middle class is very new and an artifact of the Constitution; upward mobile all the way to president.

The left appears to want the country to regress backwards to the pre-constitution royalty model. During Obama, the middle class shrunk and the peasant class grew. The goals of socialism and communism is a powerful central government, lording over a peasant under class, that pretends to be happy with this. This can be done via regulations which placed a choke hold on companies and jobs that supported the middle class and grow the upper and peasant classes.

The Clintons are like left wing royalty with them being above the law since the law is created to control the peasants. While a powerful centralize government can be used to squash those threaten the status quo.

When the Constitution was written, the only people who could vote were men who owned property. The founding fathers wanted the voters to be rational and self reliant, instead of emotional and dependent and easily manipulated using emotional appeal. The voter needed to have a stake in the fire, was committed to be in it for the long term, and was a contributor and not a dependent.

The rights of life, liberty and pursuit of happiness was based on self reliant people able to pursue their dreams, unhindered by big government. However, it needed to happen in a way where one person's pursuit did not take away from another. That meant working toward your own goals in ways that added value, so your happiness was not a net loss for others.

The founding fathers did not have an income tax, but only user taxes. The exception was during wars. The founding fathers kept money in the pocket of the people who earned it , so they could pursue happiness. The welfare state and big government violates rights if the taxes needed to help pursue happiness, creates a net loss in terms of other people pursuing their happiness. This should done with charity. Charity is a choice that can bring happiness and therefore is not imposed by big government as a deficit to others.

In the case of abortion, the Constitution would allow abortion in terms of the pursuit of happiness. Women get abortions, so they can get back into the game. However, abortion would need to be paid for by the woman who are getting the abortion. The cost cannot be placed on the backs of others through taxes and regulations. Taxes limit the ability of others to pursue their own happiness. It comes down to all our rights being based on self reliance. It cones back to the original voter profile.

As an example, we have the right to bear arms. This right does not mean the tax payers needs to foot the bill for anyone who wishes to own a gun. The gun owner has to buy his own. This is how rights are supposed to work, which is why only men were able to vote at the beginning. Men expected each other to work hard and buy your own. The women and children were used to the men paying. They were not given the right to vote, since this will turn out bad in terms of stealing rights through irrational redistribution schemes.

Exactly. So there's an inference to be made from my comment.

As to interpretation. As far as I'm aware there's the following possibilities to interpret laws.

1. Grammatical interpretation
2. Law systematic interpretation
3. Legislative historic intent interpretation
4. Historical interpretation (broader than the above, taking social circumstances into account as well)
5. Teleological interpretation
6. Anticipatory interpretation

The tradition in the USA is a strong emphasis on 1 and 3 but there's no good argument as to why this should be the case. Indeed, I find the literal approach in civil law to grossly overestimate lawyers' ability to correctly represent the intent of parties in written form and judges' ability to interpret language that's hardly as exact as they pretend it is.

They don't (or at least Scalia didn't) rely on original intent. They rely on original meaning. — Michael

Fair point. I was not aware of the distinction. But is it a distinction that makes a difference, either in understanding or effect? Poster child issue for the question is the 2d amendment - and no, that's not the topic, here. Scalia relied on original whatever-you-want-to-call-it. But was that the right thing to do? First of all, they used words. They understood what they meant by them. We don't, in the sense that we have to guess. And that need to guess is fatal to any claim of understanding. All you have got is maybe a good guess. I watched interviews with Scalia wherein he spoke about original whatever as if it were determinable. It was a lie, and I have to assume he was easily intelligent and well-informed enough to know it. He could easily said his understanding was a guess, and whether correct or not, it still had to go through the filter of present circumstance. He could have said this, but he didn't.

It is one thing when a person makes an error, a mistake, or is wrong. It is altogether another when someone lies. Scalia was a liar. As are a lot of other people.

We need to place the Constitution in historical perspective to understand intent. — wellwisher

This is what does not happen. The best you do is establish what you think is original intent. If you're honest you leave it with that label: what we think they meant. Anything else is dishonest even to the point of being a lie. Ignorance isn't an excuse because people know too much to claim ignorance. They can ignore information, but then we're back to ignorance and lies compounded.

The rest of your post is too skewed and ill-informed to respond to.

The tradition in the USA is a strong emphasis on 1 and 3 but there's no good argument as to why this should be the case. — Benkei

I think a good argument is that you ought allow the will of the democracy be expressed to the greatest extent possible and that you employ the non-democratic hammer of the Constitution only when you have a clear cut instance of democratic overreach. Since the Court has no external check, judicial self-restraint is a required virtue, else you have 5 philosopher kings running the nation. The liberal meltdown is justified now that Trump can create a Court in his image, but that's only because the Court has too much power.

So, I do think a good argument is that an interpretive system be adopted that limits the creative aspect of the Justices, which would mean limiting the interpretation to the words as they were used instead of looking for Constitutional themes and writing new chapters that appear to fit the theme the Justice deciphered.

My guess is that you'd have some affinity for a limited Court, considering the Dutch system is able to navigate without a Constitutional Court at all. The Court as protector against majority tyranny is greatly overstated. The best you can say is that the Court is generally good at reading the direction of the democracy and forcing issues sometimes sooner than some would prefer.

Your argument only becomes coherent if there's some way of establishing what the "best" interpretation is. Without that it's just another opinion.

The Netherlands like the USA doesn't have a constitutional court but it's highest court will hear any appeal provided the appeal concerns a question of law and not fact. What it cannot do, is rule on whether other national laws or signed treaties are in accordance with the Dutch constitution or not but it can give its opinion on a specific interpretation of the constitution. So in the Dutch system it's Parliament's prerogative to interpret the constitution in relation to the laws it passes. Technically it is possible that they pass laws contrary to the Dutch constitution without any possibility to litigate against it, except for the fact that a lot of the norms are also codified in international treaties, which they can check national laws against.

That said, you are probably right that the US supreme Court has more power than, for instance, the Dutch Hoge Raad and that this is cause for concern. However, your conclusion that limiting interpretative techniques limits their power is false. It only results in an exercise of that power in a certain way, it doesn't limit it. Even if it would limit it, it isn't a given that the best interpretation is one that limits the power of the judges employing it. We don't know what "best" is here. Your words seem to suggest it is something procedural or constitutive to you (by which I mean it's relationship to other official institutions empowered through the constitution). But what if in the pursuit of meeting such norms a clearly unjust result for either party comes about, which is entirely possible in that case as "best" is then not related to any result? It seems to me that although a judge would do well to realise his or her position within the constitutive framework, he is ultimately tasked with ruling between the parties and not on its own positron in the constitutional order If another interpretative technique results in a just outcome then he has every reason to employ the other techniques. The dictates of public consciousness tempered by the wisdom of tradition decide what is just and therefore "best" and interpretative techniques are tools to reach those ideals. Hardly measurable of course but then judging usually isn't.

I find the Candian "living tree" (an ongoing interpretative process) metaphor and the American constitutional originalism extremes to both be rather silly. Like everything of interest, the answer is mired in the complex middle.

While Canadian constitutionalism is the story of a small bird aimlessly searching for its real mother (since we fell leaped out of the royal nest that is), by comparison American constitutional identity and interpretation is very much rigid, stubborn and immobile.

In truth both countries have made continual improvements and amendments as their culture, people, and circumstances change and demand adaptation. In their own way, both nations have engaged in reinterpretation while also maintaining original intentions as normative bases for constitutional sovereignty. Within that process, a conservative mind will laud originalism and see the virtue of a constitution as a binding limit against possible future tyranny, and a progressive or reformist mind will see originalism as the binding us to the tyranny of the past. The "living tree" metaphor is likewise criticized as open to arbitrary changes in future interpretation, and supporters point out that it frees contemporary populations from the arbitrary whims and perhaps poorly chosen values of the past.

In my own view, we do need to respect the original intent of our laws, especially the "highest laws" of the land, and very important laws should not be changeable on mere whim. It should be difficult to alter both the intent and content of constitutional laws and amendments, but it mustn't be too difficult, or impossible, lest we have no democracy to speak of.

When Canada finally gained the right to alter its own constitution acts, it abandoned one aspect of original interpretation and intent in search of its own sovereignty (it abandoned the idea that it needs British consent to change its constitution), and that was a good thing, but it also decided (at least on paper) to keep the original intent of various treaties and agreements between the British monarch and "first nation" indigenous Canadians, which was also a good thing (many people don't know, but Canada wasn't exactly formed through conquest of indigenous groups, but rather through treaties and agreements with them). It took Canada a long time to find it's own constitutional identity (it's still searching in truth), perhaps too long, which might explain why Canadian constitutional law is so infatuated with the living tree metaphor.

America was birthed in righteous rebellion, and they eloquently articulated exactly what they wanted and what their constitutional identity was in words that are still admired to this day ("All men are created equal", "life, liberty, and the pursuit of happiness"; freedom from tyranny), and reinterpretation of these original words and to whom they should apply has definitely been a good thing (applying them to women and non-land-owning-whites). As new social issues and values rise, it is the prerogative of a given democratic public to have a say in what should be changed. Suffrage for non land owning white males is one example, abolition of slavery is another, minority and women's suffrage is another, and state level equal rights amendments are a great example. Gay marriage, abortion and transgender rights are also things we the people should have a say about. We need to think very carefully about what is best for us in the world of today, and these decisions are not easy. Calling for a broad conservation of historically recent values is good in some situations, and bad in others; it depends on the issue and the value.

As to interpretation. As far as I'm aware there's the following possibilities to interpret laws.

1. Grammatical interpretation
2. Law systematic interpretation
3. Legislative historic intent interpretation
4. Historical interpretation (broader than the above, taking social circumstances into account as well)
5. Teleological interpretation
6. Anticipatory interpretation — Benkei

Anticipatory interpretation sounds interesting, what does it consist of?

I watched interviews with Scalia wherein he spoke about original whatever as if it were determinable. It was a lie, and I have to assume he was easily intelligent and well-informed enough to know it. He could easily said his understanding was a guess, and whether correct or not, it still had to go through the filter of present circumstance. He could have said this, but he didn't. — tim wood

I tend to agree with Scalia or at least, I assumed that Scalia's interpretation was the best one, since it relied on what the constitution meant at the time it was written. I do not think Scalia was lying, he chooses to take his stand. In fact he calls it the 'dead' constitution, and is well aware that he cannot convince the other supreme court judges otherwise, and also of the fact that SC judges are political appointees, making the 'mad swings of the pendulum' (Judge Thomas) possible.

Which type of interpretation best serves the common good it is impossible for me to say, however the 'mad swings of the pendulum', if it is truly random maybe the fairest system of all.

Though this be madness, yet there is method in ’t. — Hamlet

I mentioned it for completeness sake but it's not applied very regularly. The anticipatory interpretation takes into account laws that haven't yet been passed but are under consideration with Parliament. Only rarely is the interpretation method leading but it has happened in the Netherlands where rulings referred verbatim to upcoming legislation and set aside existing law. There's obviously a lot to be said about whether that's really a good idea. Where it does work very wel if when current law is unclear or incomplete and the upcoming legislation can fill in those gaps are clarify.

since it relied on what the constitution meant at the time it was written. — FreeEmotion

Here's our issue. If Scalia tells me what the Constitution meant at the time it was written, I know he's either misspeaking or operating under false colours for some reason - ignorance, stupidity, lying. And that sounds harsh, but the arena where Scalia was working has rigorous standards. And any claim of rhetorical shorthand is disingenuous at charitable best.

So, instead of attending to his specious argument, I'm left to wondering what the mix is, of his ignorance, stupidity, or lies.

To preserve his integrity, all he had to do was acknowledge interpretation - but that door he wanted closed!

Here is a fascinating speech by David Souter (Souter at Harvard).. His part starts at about 4:00.

https://www.youtube.com/watch?v=eCxaDwOCXD8

Here in God's favorite country, the goal of the court is to interpret laws consistent with the intent of the law-maker (the legislature). However, if the language of a law is unambiguous, it is to be applied in accordance with its "plain meaning." Consideration is given to sources beyond the language of the law, even legislative history, only if a law is ambiguous (subject to different interpretations by reasonable people). Also in that case, the rules of statutory construction apply. Many of those rules are expressed in solemn and impressive Latin phrases. For example: Expressio Unius Est Exclusio Alterius meaning when one or more things of a class are expressly mentioned others of the same class are excluded.

Who would have thought that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" would be considered ambiguous? This is intended to be ironic, if anyone wants to know.

Of course, there are many more fun things to consider. Is a law to be strictly construed, or is substantial compliance with the law adequate? This can be a consideration regardless of whether a law is unambiguous.

Fascinating.

Who would have thought that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" would be considered ambiguous? — Ciceronianus the White

Put it down to ignorance then,

The above quote, just to venture my opinion, would, I think, be most naturally be interpreted as a law permanently establishing a Militia. I do not doubt that this idea has been interpreted as the right of every American citizen to carry an M-16 or a weapon of choice. Maybe someone can explain how this came about. There is the Wikipedia article:

In McDonald v. Chicago (2010), the Court clarified its earlier decisions that limited the amendment's impact to a restriction on the federal government, expressly holding that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment against state and local governments.[19] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that its protection is not limited to "only those weapons useful in warfare".[20]

https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

How do I find out what the above part of the Constitution, the 'right to bear arms' meant at the time of writing?

Is it

a) impossible to know what it actually meant or even

c) impossible to know what it most likely meant by studying the history and culture of the time?

How do I find out what the above part of the Constitution, the 'right to bear arms' meant at the time of writing?
Is it
a) impossible to know what it actually meant or even
c) impossible to know what it most likely meant by studying the history and culture of the time? — FreeEmotion

a) Impossible to know. a) and c) Certainly possible to study history and culture of the time, although not as easy as it sounds.

But first answer the question why, as to a) or c). The history is no doubt interesting; and informed and researched statements as to that history could well be informative - but not to us about us. In 1792 my neighbor maybe owns a flintlock rifle or pistol. Likely on the frontier he should, and does - it's a tool. Let's suppose the clear and unambiguous law of the land is that he or she gets both to own it and keep it. Does that law (not any interpretation of that law, but the law itself - do you begin to see a problem, here) allow your neighbor to own a grenade launcher, an m90 machine gun, and anything else in the way of weaponry he can buy?

It's been long understood, articulated by John Marshall, that it is a constitution that is being interpreted. To which can be added, ...not a law that is being enforced.