MrRodgers
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ORIGINAL: DesideriScuri
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ORIGINAL: dcnovice
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A strict Constitutionalist would be one that interpreted the Constitution in a very strict way.
Isn't that a bit circular? Who gets to define "strict" and on what basis?
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An originalist would see how a phrase was interpreted at the time of the writing, ignoring any change in usage of words.
But does the Constitution itself prescribe originalism? If not, it's just as extra-Constitutional a lens as the "living document" approach that so agitated the dearly departed.
There is only the words the Founders used, and the Federalist Papers, which were, in part, defenses of the system the US Constitution was the framework for.
By your reasoning, since none of the words used in the document are defined within the document itself, attempting to interpret any word is "extra-Constitutional."
Limiting word usages and definitions to those used when they were written (including the Amendments) would be a big part of how an originalist or strict Constitutionalist looks at the Constitution.
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An originalist might also interpret things the way they were intended, by those that wrote the words.
That suggests there was a single, coherent, universally shared view of what the Constitution meant. In reality, though, the document is a collection of compromises among men (and they all were) with fierce debate engulfing both the composition and ratification. If memory serves, many folks based their ratifaction of the new Constitution on the understanding that a Bill of Rights would swiftly be added. That suggests that, right from the start, folks realized that making the Constitution work would require more than textual fundamentalism.
The Bill of Rights was not necessary, in Madison's viewpoint, except as a way to salve the anxieties of voters. (Italics mine)quote:
In the last few days of the 1787 Constitutional Convention, a majority of delegates, including James Madison, rejected George Mason and Elbridge Gerry’s proposal for a Bill of Rights. At the time, Madison was confident that the Constitution did not give the federal government any powers that could endanger individual liberties. Madison thought it was potentially dangerous to list some of the rights of the people, in case these might be interpreted as the only rights of the people.
During the ratification debates, however, Madison realized that many people were unwilling to approve the Constitution unless a Bill of Rights was added. He successfully ran for Congress by pledging to support such a bill, and began advocating for it within four days of George Washington’s inauguration. Madison was aware that some members of Congress were still dissatisfied with the new Constitution and would take advantage of any opportunity to amend it, in order to weaken the federal government in favor of the states. Madison’s concern, however, was that the rights of the people be protected from actions of the states as well as the federal government.
The lack of specific limits on Federal power was also one of the concerns of the Anti-Federalists.quote:
One of the many points of contention between Federalists and Anti-Federalists was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty.
Whether or not a "BoR" was necessary, or included, doesn't have any impact on the words used to write the Constitution.
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ORIGINAL: dcnovice
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For me, two questions demonstrate the complexities of interpreting and applying the Constitution.
(a) Nowhere that I can find does the Constitution grant judges the right to declare laws unconstitutional. Yet the practice, rooted in Marbury v. Madison (1803), has become a pillar of U.S. jurisprudence. Is that appalling, acceptable, admirable, or some mix of them all?
This one is somewhat sticky, but this article was a good read. One interesting (and ironic [Italics mine], considering this very thread) paragraph:quote:
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
No way it becomes a "battleground of competing factions, political passion and partisan spirit. lol
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(b) The Eighth Amendment forbids "cruel and unusual punishment." Does it apply only to punishments considered "cruel and unusual" in 1791, when the amendment was ratified? Or does it embrace practices--such as branding, flogging, and jailing debtors--that were acceptable then but now strike many Americans as abhorrent?
https://www.law.cornell.edu/anncon/html/amdt8_user.html#amdt8_hd8
One could rely upon the Constitutional convention and its transcripts every bit as much as the Federalist papers. There was stark disagreement for example on the need for any protection from the so-called 'tyranny of the majority' when after all...it is majority rule.
Many scholars have said that whole concept has resulted in an empowered minority well beyond the concept of majority rule and has been used to stop the very concept of democracy. Aristotle's view was that the poorest and smallest minority would always remain so because of the majority rule and [they] did so even in the face have having a majority with the middle-class and directly as a result of a powerful minority.
Madison saw no need for such protection of the smallest and poorest minority except when it came to protecting the ruling elites from them and the so-called 'tyranny' of ALL of the masses i.e., a ruling majority when combined with the middle. Some will argue further, that's how we have such economic inequality now and I agree.
Going even further, another example that to require a 60 vote foreclosure of something called 'cloture' in the senate NOT even in the constitution at all, is a blatant protection of the ruling 'minority' elites. And I agree there too.
In fact if guys like Scalia weren't in reality such capitalist fascists and were real originalists, he would have argued even voted that the Fed is unconstitutional, a standing peace-time army was likewise in violation, without there being war having been declared by a vote of congress, that the ICC does not in fact empower the federal govt. to rule the national economic laws, that the currency should be free and from treasury, that gerrymandering between constitutional census was also in violation, that the 16th amend was never fully ratified by the required 36 states, that neither the pres, had the power or congress the right to delegate the power for any pres. to kill...a suspect.
The list could go on.
< Message edited by MrRodgers -- 2/26/2016 11:08:43 AM >
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Under capitalism, man exploits man. Under communism, it's just the opposite.
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RE: SCOTUS nominee is out...letter to the POTUS - 
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