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The Constitution of the United States is the bedrock upon which all laws and governance relies upon for its legality, and we commonly perceive the Supreme Court as the final arbiter of whether a law is sufficiently in keeping with the Constitution. The practice of this determination is commonly referred to as 'judicial review'.

This great power of the Supreme Court was also never explicitly granted to them in the Constitution. Article III only establishes a Supreme Court, it wasn't until Marbury v. Madison in 1803 that Chief Justice John Marshall made the concept part of the American judicial system.

Because the constitutionality of law was then and has since been subject to the judgement of the courts, those on the courts have ultimately created their own interpretations on how to read the Constitution. While it's easy to divide these camps into 'left' and 'right' or 'conservative' and 'liberal', these labels are political in nature and have no real legal meaning. After all, how does one legally define 'liberal', 'libertarian', 'progressive', or 'conservative'? The labels for these interpretations must therefore be derived from how the Constitution is read, and not the political leanings of the one reading it.

Below the official orange seal, the two most prominent methods of constitutional interpretation are defined, discussed, and another d-word that I can't muster right now. Keep in mind that this research is the result of a cursory Google and Wikipedia search, and is not exhaustive. I am not a law student, I am not an expert, and I will gladly defer to anyone with such expertise. This is merely what I have found.


Originalism is actually not a single theory and it should not be confused with textualism, though they are closely related. It is a term referring to two theories. Original intent, and original meaning.

Original intent is by and large not fashionable in modern legal proceedings, and should not be confused for what modern originalism actually is. Original intent refers to the concept that a court should only give a statute the power that its authors intended for its purpose. While this obviously creates problems for people who are not originalists, modern originalists have their own beef with original intent.

One of the major problems with original intent is assuming that Framers had a single, unified intent. It is highly unlikely that they had such intent on every part of the Constitution, and in the modern day the members of the House and Senate certainly do not share this united intent.

Original meaning is the more commonly adhered to school of thought for originalists, and the legal framework that modern Justices like Scalia and Thomas adhere to. It observes any questioned section of the Constitution and wonders aloud what a sensible person at the time that section was ratified might think it meant, and that what this sensible person believed must be held as the true extent of the law.

One unifying theory behind the concept of originalism is that the definition of the Constitution is unchanging. That the document means exactly the same things now that it does back when it was declared law of the land. This means that any new interpretations are not of any consequence during interpretation. In an originalist's point of view, if you want to change the meaning of the Constitution the document makes clear that an Amendment is your method to do so.

It must be stressed that while it is common for originalists to be conservatives, that the originalist interpretation cannot simply be labelled 'conservative'. An originalist would argue that it is not the court's place to determine what is and is not law, but that of Congress, and that the authority to determine what is and is not part of the Constitution is the authority of Article V - Amendments. Originalists can make judgements that piss off the conservatives- Justice Scalia's dissent in Hamdi v. Rumsfeld where he declared that Hamdi (an enemy combatant) must either be tried in normal court or that habeus corpus must be suspended is a noteworthy example.

Originalists firmly believe that the Constitution's meaning must remain unchanging save for Amendments, lest an 'activist' judge warp its meaning to the point where the Constitution means nothing at all. This is actually a legal view held by Thomas Jefferson, who while he certainly viewed the Constitution as flexible warned against excessive interpretation:

[t]he Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please
The Living Constitution

There is no one word that can adequately describe the opposing viewpoint to originalism. The concept of loose constructionism has been around since the beginning of the country, but it was only in 1927 that Professor Howard McBain coined its modern name based on the title of his book.

The theory behind the 'Living Constitution' is that the Constitution's meaning is not fixed, but dynamic. Ideally, any interpretation of a constitutional case would not only take into account what the laws of the time at ratification were but also contemporary laws and viewpoints. Like originalism, this theory is not a single method of interpretations and can be broken into two points, though unlike originalism the two points are more complimentary than contrary.

The pragmatist approach attempts to point out that a Constitution whose definition is unchanging can result in unacceptable policies, and that therefore the meaning of the Constitution must change and evolve over time in order to remain a viable governing document.

The concept of original intent is still a viable one in this legal viewpoint, but from a different perspective than the originalists. While originalists believed that the Framers considered the Constitution a document whose broadness is it limiting factor, people who believe in loose constructionism believe this broadness to be a clear sign the Framers intended it to accommodate societal and technological changes.

For loose constructionists, this interpretation of broadness leads to the conclusion that the Framers were as smart as we gave them credit for and had quite a bit of foresight. This view is supported by the opinion of James Madison, the 'Father of the Constitution':

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.
In modern times, loose constructionalism is viewed as the territory of 'activist judges' by conservatives. After all, who is to say that your interpretation is what the law actually says and not what you want it to say?

As a point of comparison, Canadian legal scholars strongly believe in loose constructionalism under the 'living tree doctrine' since their Constitution was explicitly intended to encompass unwritten legal principles. It has been a key facet of their legal system since 1929.


Both interpretations exist in the modern American legal system because the Constitution does not explicitly state how to interpret it. In the absence of such instruction, both originalists and loose constructionalists believe that their side is the one that was intended - with originalists pointing to the absence of instruction and constructionalists believing that the absence implies interpretation.

It is crucial to understand the competing interpretations of the Constitution in order to understand a great number of legal proceedings in the Court today. Here's a timely example concerning the Second Amendment. The text is as follows:

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
With the concept of state militias quickly becoming invalid in favor of a standing army, how do the courts view the Second Amendment?

-The originalist interpretation of the Second Amendment means that the Framers clearly intended for access to firearms to be protected, even if the idea of militias for state defense are no longer valid. Scalia himself has focused on the 'bear arms' part of the Amendment as a possible constitutional question for handheld missile launchers.

-A loose constructionalist would view the Second Amendment's right to bear arms as intended for the maintaining of state militias, which are obsolete. Some (but not all) would argue that if the Constitution had intended for private firearm ownership to be protected to this degree, that they would have specified it and not just on state militia service.

There are other cases in modern times where the two schools clash before us. Liberals and progressives often use the concepts behind a Living Constitution to justify the legality of gay marriage, government healthcare, and abortion. After all, how could the Founding Fathers have ever imagine the concept of such things, let alone the possible necessity of them?

Meanwhile, conservatives argue that if the government wants that authority.... well, draft a Constitutional amendment and try to convince everyone.

The constitutional schools of originalism and loose constructionism are tools with which we try to argue with. If you want a progressive future, if you want a future with gay marriage and the right to an abortion protected, and certainly if you want a government based on the Constitution who can be relevant to the changes of society, it makes sense to argue from a loose constructionist view. If you're in an argument with someone about such things, try it out.

1:01 PM PT: Update: Wow, this got rescued. I'm honestly flattered; thanks!

Originally posted to VTHokie011 on Fri Jan 11, 2013 at 08:15 AM PST.

Also republished by Community Spotlight.


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Comment Preferences

  •  I think most people's interps are for convenience. (4+ / 0-)

    And the vast majority gravitate toward one of the other depending on their personal preferences.

    For instance, some here accept that there's a constitutional right to an abortion, via an implied right to privacy via the actual wording of the 14th amendment.

    BUT, they want to get all originalist on the 2nd meaning it's only a right to carry muskets in a militia.

    I see what you did there.

    by GoGoGoEverton on Fri Jan 11, 2013 at 08:24:02 AM PST

    •  Probably right (4+ / 0-)

      I would assume that's the legal underpinnings of Roe v. Wade.

      As for the Second Amendment, there's probably a line that gets crossed between 'this is what they intended' and 'well, they had to have imagined there would be better guns'.

      •  Some thoughts here (3+ / 0-)

        The underpinnings of Roe v. Wade are fully articulated in Griswold v. Connecticut, a case involving a Connecticut law outlawing contraception, including for married couples.

        Justice Douglas discussed privacy as emanating from various provisions of the Bill of Rights, such as the right of a person to be free of unreasonable searchs of her home.  The reasoning of Griswold is sound and if if were possible to take the word "abortion" out of any discussion, Americans would find that the right against government intrusion into our lives is well worth preserving.

        That reasoning, however, has little to do with the Second Amendment and it is here that I depart from the theoretical framework you've set forth in the diary, as I understand it.

        Looking at the words of the Second Amendment, it is plain that there is no Constitutional right to own guns for hunting, collecting, or protecting one's family. Irrespective of intent, the language confines the right to bear arms to a specific context, i.e., a well regulated militia the founders considered to be necessary to the security of a free state.

        This is important because when interpreting the Constitution, just as with statutes, the language is the starting point and, if the language is clear, the end point. In addition, interpretive rules require giving meaning to all the words used; superfluity is never to be assumed.

        Thus, those who argue that the Second Amendment has a broad reach and includes, say, carrying a concealed weapon in the local grocery store for protection are arguing against the plain language of the amendment.  The argument is not textually supportable and fits into neither the originalist nor "loose constructionalism" theory.

        Those who are invoking the "a well regulated militia being necessary to the security of a free state" language are the originalists, irrespective of which side they're on (although my impression is that this language is more often invoked by gun control advocates).  In this respect, the question, as posed within the framework of your diary, is whether the right embodied in the Second Amendment is restricted based on what the relevant language meant at the time or, by contrast, whether, even without militias, individuals nevertheless possess the right to bear arms because usurpation of the people's authority is never confined to a specific point in time.

        Understood this way, it is the gun rights advocates who fit within the "loose constructionalism" theory and gun control advocates who are the originalists.

        I appreciate the diary and its call for a thoughtful discussion on this matter.   Kudos to the Rangers for putting your post in the Community Spotlight.

        •  I would disagree with your interpretation (3+ / 0-)
          Recommended by:
          VetGrl, rktect, ban nock

          and yet I would consider myself an Originalist. (original meaning) When looking at the Bill of Rights, the rest are personal rights. I don't think the intent of the 2nd was different. I personally agree with this:

          District of Columbia vs. Heller:

          1. Operative Clause.
              a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause.

          A conservative is a man with two perfectly good legs who, however, has never learned how to walk forward. Franklin D. Roosevelt

          by notrouble on Fri Jan 11, 2013 at 05:13:36 PM PST

          [ Parent ]

          •  Without context, that phrase is meaningless (2+ / 0-)
            Recommended by:
            FogCityJohn, madcitysailor

            The text you quote leaves out the most important part, i.e., the rights of the people viz a viz whom?

            Contextually, the Bill of Rights isn't the least bit concerned with the rights of the people viz their fellow citizens.  The whole of the first ten amendments is about our collective rights as against our government. This is plain from the first words of the Bill of Rights ("Congress shall make no law...") through to, almost, the end. Underscoring this point is the dominant theme of criminal law and procedure.

            Beyond that, there is much about Heller that is worthy of discussion.  Sadly, that discussion is on my personal list of "don't bother with it on Daily Kos."  I can talk about the rules of interpretation until the cows come home, so if that's your interest, let's continue.  Otherwise, I'm out.

          •  Where do you place the origin? (0+ / 0-)

            You speak of the "Right of the People"

            Given Rights are not Privileges, Do We the People have a right to a written Law that is "The Law" and not just "Our Law".

            Written law depends upon building a consensus to be law abiding and to discriminate against those who refuse to join the consensus and be law abiding as outlaws. Supposedly one person one vote.

            In Mosaic Law its important that there be "The Law" rather than "Our Law",  because "The Law" is sacred and sovereign. In Mosaic law an image of the god (the law)  is carved in stone, housed in an ark and the ark placed in a sanctuary in the Egyptian manner.

            To build a consensus to be law abiding among people with different traditions of common law Mosaic Law embeds things like the golden rule, which along with Sharia Law weds power with wisdom to breed justice, and Hotep, the ancient Egyptian concept of doing what is right and proper.

            In being abiding of "The Law" as a written law based on Mosaic Law we are supposed to do unto others as we would have others do unto us, not act as States to use "Our Law" to gerrymander districts and enable voter suppression. The Majority is not supposed to use the power of its position to oppress the Minority.

            "The Law" as Federal Law, the basis of a more perfect union of States which has become "Our Law" through the concept of States Rights comes down to us through an unresolved  battle between church and state in which the only real winners were the lawyers, the scribes employed to write it.

            "The Law" is intended to be not just omnipotent but fair and balanced, not skewed to take the direction of special interests but straight and level, correct and in accordance with the will of the people so that its feather of truth may properly give balance to the scales of justice.

            "The Law" is supposed to be sovereign over all the other gods including the word of the POTUS, Pharoah or king, sub deities such as the competent administrators or judges who interpret it up to and including the SCOTUS, and whatever Congress, Senate, Parliament or representative body that speaks for we the people whose consensus to be law abiding founded the nation, drafted its constitution, and passed the legislation that enables or makes it easier for "The Law" to function.

            It is agreed by those who join the consensus to be law abiding that those who are defined as outlaws are to be put under the ban and deprived of life, liberty and the pursuit of freedom.

            The whole idea of the written law being sovereign over the common law, all the norms, mores, conventions, attitudes, values, opinions and precedents which form the basis of the consensus to be law abiding is that no special interest, media pundit, talk show host, boss, ruler, king, strongman, lugal, regent or corporate lobbyist gets to just say something different and then create a self fulfilling prophecy wherein their word is law.

            For roughly four thousand years this concept has been accepted internationally. International treaties, trade agreements, rules of civil procedure and all the various titles that divide the written law up into Civil Law and Criminal Law with due regard for common law and precedent not to mention Maritime Law, and the Geneva Convention.

            Now we suddenly have the unitary executive, the Patriot Act, The Detainee Treatment Act, FISA, and all the rest of the effluvia of  the war on terror throwing all the written laws into a cocked hat. The Bill of Rights turns out to be considered expendable if the powers that be feel its necessary that we should give up our freedoms in the name of security.

            I put it to you that what we have here is a consensus of the outlaws not to be law abiding.

            All of those who up to now have been excluded from the decision making process, the lawyers, guns and money who just want to profit from doing bad things have joined together in revolt.

            Those who are dismissive of environmental regulations, who see any obstruction to strip mining the mountains, polluting the oceans, creating the climate change that is killing everything that walks or crawls, swims of flys as a great evil and the accumulation of wealth as a great good have finally gotten their chance to hear their money talk with the Citizens United ruling.

            While most of us think that any judges who could allow that are not competent administrators and have violated their fiduciary responsibilities to the beneficiaries of the trust we place in our nation, it has become apparent that there is another perspective.

            A solid third of the population of our nation opposes a woman's right to chose, feels the second amendment  gives them the right to make war on women, racial and ethnic minorities, immigrants, gays, and liberals.

            The NRA and gun nuts are joining forces with the chamber of commerce and the military industrial complex to demand that the focus of the liberalism following the New Deal on laws respecting voting rights, education, healthcare, social security and safety nets be repealed.

            The war on poverty that was suppose to protect those who are hungry, homeless, disabled by illness or economic misfortune; the young, the elderly, the poor and the disenfranchised has evolved. The Republican campaign slogan of a war on terror been revised to redistribute our nations wealth to big oil, coal, the unholy associations of bankers, and special interests.

            For the neocon CIA mercenary hit squad drone operators, covert operations torturers, murderers, and thieves, the assassins guild we call the Military Industrial Complex, has embraced the ethics of the gangsters who deal arms, and drugs, traffic in sex slaves to make war on women and children.

            The Law has once again become whatever the man with the gun says it is.

            Live Free or Die --- Investigate, Incarcerate

            by rktect on Sat Jan 12, 2013 at 02:57:31 AM PST

            [ Parent ]

        •  Where does it confine it to a specific context? (0+ / 0-)

          It does no such thing. It merely offers one example of many why such a right is important.

          •  Nonsense (0+ / 0-)

            What you posit has no support in the rules of construction or in the text of the Constitution itself.

            One such rule invites a comparison of the Second Amendment to the First.  The latter shows that the framers knew full well how to draft an unqualified right.  Had the framers intended to confer the same status to the right to keep and bear arms, they would not have chosen the very different construction employed in the Second Amendment.

            •  I do not think this is the case. (0+ / 0-)

              While they were very talented and eloquent men, they also capitalized every third word and had strange ideas about where commas should go.

              If we go through other works that they authored, we discover that they certainly thought that it should be unqualified. What you consider a condition of that right was more more than poetry tossed in because they couldn't help themselves.

    •  You say that... (1+ / 0-)
      Recommended by:
      BUT, they want to get all originalist on the 2nd meaning it's only a right to carry muskets in a militia.
      You say that, and yet it still talks about a 'well-regulated militia', and we still don't have any such thing, and the right to bear arms, it has been decided, has nothing to do with it.

      Which is to say, we have amended the constitution without actually amending it. We have all simultaneously agreed to ignore the inconvenient part.

      This is entirely different than, say, extending the first amendment to cover online speech as well as types of speech that were available at the time of the writing of the Constitution. It'd be like if the zeroth amendment said, 'Because horses are vitally necessary for transportation, the right of any citizen to own a horse may not be abridged', and now people are using this to force landlords in Manhattan to let them keep a horse in the guest room.

      But hey. Nuance and rationality are the first things to get lost in our national discourse, so I guess it makes sense that those who are never tempted to use or even try to understand them (cough NRA cough) have a distinct advantage in that fight.

  •  asdf (0+ / 0-)
    -A loose constructionalist would view the Second Amendment's right to bear arms as intended for the maintaining of state militias, which are obsolete. Some (but not all) would argue that if the Constitution had intended for private firearm ownership to be protected to this degree, that they would have specified it and not just on state militia service.
    isn't this still arguing some form of originalism?  Also, it's not clear that state militias were intended to be protected at all.

    "The Taibbi article is a defense of status quo" -- citizen k

    by happymisanthropy on Fri Jan 11, 2013 at 01:04:32 PM PST

    •  There's a bit of a divide (3+ / 0-)
      Recommended by:
      cocinero, Bisbonian, Oh Mary Oh

      Based on Wikipedia, the US actually did not have a standing army until 1791, with state militias taking their role. So the state militias actually were protected, and it was not until the government realized that Native Americans were going to fight them that they moved in favor of a permanent army.

      I don't think either school would argue against the militias being protected. I think the argument is whether this also means that private firearm ownership is protected (to an originalist, you probably own the firearm you're using for that militia) or not (to a constructionist, you only had the gun for the militia, and once we determined that militias were rubbish the right wasn't explicitly protected).

      •  But, see (0+ / 0-)
        I don't think either school would argue against the militias being protected.
        Perhaps not, but I will.
        I think the argument is whether this also means that private firearm ownership is protected (to an originalist, you probably own the firearm you're using for that militia) or not (to a constructionist, you only had the gun for the militia, and once we determined that militias were rubbish the right wasn't explicitly protected).
        But the second amendment doesn't say "Congress is prohibited from disarming the militias, unless Congress thinks the militias aren't necessary after all."

        It's not the government's power to decide that the restraints that the framers deliberately put upon government are obsolete and inoperative.

        Would we say that because newspapers are obsolete, they are no longer protected under the first amendment?

        Furthermore, militias are only strictly obsolete because the Supreme Court wrongly decided that the Federal Government has the power to draft people directly into the United States military.  If that is ever corrected, then we'll have to permanently do without the draft, or acknowledge that militias are indeed still necessary.

        "The Taibbi article is a defense of status quo" -- citizen k

        by happymisanthropy on Fri Jan 11, 2013 at 01:28:32 PM PST

        [ Parent ]

        •  Not quite (1+ / 0-)
          Recommended by:

          Militias from a strategic standpoint rapidly did become obsolete because it's much harder to gain experienced soldiers and retain them in that field. Militias are not comprised of people who are soldiers by trade that usually provided their own arms. In addition, the timeframe of the first twenty of so years showed that the states were largely uncooperative towards each other unless compelled to by law- this is a large reason why the Articles of Confederation failed.

          You're right that the second amendment doesn't say 'Congress can't disarm the militias unless they aren't necessary' because the Founding Fathers did not believe we would ever consider them unnecessary. In addition, since people had to maintain their guns to be part of a militia it might be considered an unlawful seizure of property. One of the things that they rebelled against Britain for.

          If a tree falls in a forest and no one is around to hear it, does that mean Bigfoot did it?

          by VTHokie011 on Fri Jan 11, 2013 at 01:50:01 PM PST

          [ Parent ]

      •  not sure about this part (1+ / 0-)
        Recommended by:
        was not until the government realized that Native Americans were going to fight them
        I think Native Americans and Euro settlers had been having very protracted and vicious wars for hundreds of years at the time of the Constitution.

        How big is your personal carbon footprint?

        by ban nock on Sat Jan 12, 2013 at 02:56:18 AM PST

        [ Parent ]

  •  The other irksome thing . . . (4+ / 0-)

    Is when folks vacillate between "originalism" and "loose constructionism" depending on the outcome they want. Of course, for you and me and the fellow over there, that doesn't amount to much. When a Supreme Court Justice does this, cloaking his views in an unassailability more cognizable as papal infallibility or the divine right of kings, it can make a big difference. No fair guessing who I have in mind.

    Another irksome thing to my mind is hearing the language employed by biblical literalists when it comes to the nation's citizens' relationship to their written constitution. Biblical literalism is a method employed by folks who like their spirituality defined by "God said it, I believe it, that settles it." Snag a biblical verse that says what you want to argue, and bam! the discussion is o-v-e-r, because "The Bible says . . ."

    I've said it before, and I'll say it again, that there's nothing wrong with having a fifth grade understanding of the Bible . . . as long as you're in fifth grade. The same goes for the Constitution, in my estimation. But the conflation of biblical literalism with constitutional "originalism" is not an accident, in my opinion. Folks who force Constitutional texts into the same bad template that they use for the Bible do so for a reason that often goes unstated, and nearly never gets examined.

  •  There are those who do not accept this (4+ / 0-)
    Recommended by:
    Bisbonian, mskitty, ban nock, Oh Mary Oh

    basic premise:

    [W]e commonly perceive the Supreme Court as the final arbiter of whether a law is sufficiently in keeping with the Constitution.
    The tea baggers with their little pocket constitutions continually say, "It's unconstitutional" even after the Supreme Court has ruled otherwise. Some claim that such well established things as the Department of Education or the EPA are unconstitutional. My rep, Steve King, continued to say ObamaCare is unconstitutional after the Supreme Court refused to overturn it. Now we have insurrectionist gun nuts claiming that a ban on assault rifles would be unconstitutional and vowing to use their weapons to defend their self-proclamed Second Amendment rights.
    •  Denial isn't just a river in Egypt (3+ / 0-)
      Recommended by:
      Bisbonian, cocinero, Oh Mary Oh

      While I'm certain most of those people don't understand the basic underpinnings of that premise, there is a grain of logic in it. If only a grain.

      After all, the Supreme Court does change its membership over time, and with that it changes how it leans. The legality of something like abortion or gay rights or the meaning of the General Welfare Clause can often swing on one vote, and to the teabaggers if they can maintain power or attain power during a time when one of those votes is in flux, they can reverse all the decisions they don't like.

      That assumes that they understand that this is the Supreme Court's job. Which.... I don't have a lot of faith that some of them do.

      If a tree falls in a forest and no one is around to hear it, does that mean Bigfoot did it?

      by VTHokie011 on Fri Jan 11, 2013 at 01:57:33 PM PST

      [ Parent ]

    •  I don't defend the tea-baggers. (1+ / 0-)
      Recommended by:

      But if the Supreme Court makes some horrible ruling with unconscionable consequences, is there anyone here that would defend it?

      "Well, I don't like being forced to stomp on toddler's heads, but 5 justices out of 9 have interpreted the Constitution such that I have a duty to do so! Guess I better go get my boots on!"


      We can't play that card for just anything, of course. You only get to play it once, and the implications of it are less than preferable, to understate it.

      So no, I don't think they're the "final arbiter". Each human being has a moral obligation to be the final arbiter of all rules and laws, and if he comes across one so noxious and sinister that he cannot stand it, then that law is void right there and then.

  •  George Washington was the indispensable man. (2+ / 0-)
    Recommended by:
    ban nock, bluebuckeyewmn

    He was commander-in-chief of the Continental Army, he presided over the constitutional convention, and he was the first President under the new Constitution. On November 9, 1787, about two months after the constitutional convention ended, he wrote a letter to his nephew and heir, Bushrod Washington. He said (emphasis in the original):

    The warmest friends to, and the best supporters of, the Constitution, do not contend that it is free from imperfections; but these were not to be avoided, and they are convinced if evils are likely to flow from them, that the remedy must come thereafter; because, in the present moment it is not to be obtained. And as there is a Constitutional door open for it, I think the people (for it is with them to judge) can, as they will have the aid of experience on their side, decide with as much propriety on the alterations and amendments which shall be found necessary, as ourselves; for I do not conceive that we are more inspired—have more wisdom—or possess more virtue than those who will come after us. The power under the Constitution will always be with the people. It is entrusted for certain defined purposes and for a certain limited period to representatives of their own choosing; and whenever it is exercised contrary to their interests, or not according to their wishes, their Servants can, and undoubtedly will be, recalled.
    There was no warmer friend to the Constitution than George Washington. He was President of the constitutional convention, and therefore was more knowledgeable about its functions and about the intentions of the Framers than anyone living today. He was not just a casual observer, and his words should be given much deference. I take his words in the first part of the paragraph above to include the idea that we shouldn’t take the Constitution literally because we know it is imperfect. I think he was saying that we, the People, are free to judge for ourselves what the Constitution means. He was telling us that the world and the Constitution belong to the living—the Constitution is a living document to be defined, and changed if necessary, by those who live under its protection. Supreme Court Associate Justice Antonin Scalia, a staunch believer in Originalism, disagrees with Washington on this point. So, we are faced with a choice between the thinking of George Washington and the thinking of Antonin Scalia. What do you think? If you agree with Washington, then Scalia does not belong on the Court, but if you disagree with Washington—wait a second, how on earth could you possibly disagree with George Washington?

    So, the Justices of the Supreme Court, to the extent that they have disagreed with George Washington’s description of the original document, have failed to carry out their duties in keeping with the aims of the Framers, and therefore our Supreme Court has failed to live up to the goals of the constitutional system. And to the extent that we, the People, defer to these tyranno-Justices then we are also failing. We should reform the Constitution as we think best. Remember, Washington had a lot of confidence in our inspiration, our wisdom, and our virtue—we must not let him down.

    So, Antonin Scalia, Roger Taney, the five tyranno-justices who gave George W. Bush the office of President, the five who declared recently that corporations are people, and many others over the centuries, as they imposed their personal viewpoints on the rest of society, were committing grievous wrongs, but they could not have done so were it not for the imperfections of the Constitution which gave them room to maneuver. The Supreme Court is badly designed. Like the other two branches of government, it places too much power in the hands of too few for too long.

    All of the foregoing is taken from a book of mine called, Faction-Free Democracy, Finishing What the Framers Started.

    Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

    by hestal on Fri Jan 11, 2013 at 02:16:39 PM PST

    •  Huh? (0+ / 0-)
      and changed if necessary, by those who live under its protection.
      While this is certainly true, the rules on how to do so are quite clear: you need to amend it.

      Anything else isn't changing... it's gutting.

      •  Huh? (0+ / 0-)

        You can change the second amendment by regulating who owns guns, how many guns, what types of guns, where and when guns can be, etc. Anyone who has an open mind can see lots of ways to make society safer than it is now.

        But in any case your statement shows that you think you know more about how the Constitution works than George Washington did. If I am forced to choose between your thinking and the thinking of George Washington, the choice is simple: George Washington wins.

        Furthermore the second amendment, as it functions today, destroys innocent lives and it does so, not for any useful purpose, but just so that gun lovers can indulge some inner fantasies that only they have access to.

        Drunks and dope addicts do the same thing. They indulge their inner fantasies and then destroy their own lives and the lives of innocents: their family members and people they crash their cars into when they drive  under the influence of whatever chemical triggers their fantasies.

        We regulate alcohol and dope, guns need to be regulated for the very same reasons.

        Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

        by hestal on Sat Jan 12, 2013 at 03:27:46 AM PST

        [ Parent ]

  •  Why does everyone just skip over the word keep? (0+ / 0-)

    If arms bearers actually kept their arms, a lot of the problem would be solved in my opinion.

    Am I totally out of line here.  

    The RkBAers think so.  

    Sign my White House Petition Enforce the KEEP in the Second Amendment We don't have a problem with gun control, we have a problem with gun owners controlling their guns.

    by 88kathy on Fri Jan 11, 2013 at 03:10:06 PM PST

  •  I think that there is a THIRD approach to (3+ / 0-)
    Recommended by:
    kyril, Oh Mary Oh, bluebuckeyewmn

    interpretation -- which is to try to understand the underlying design of the Constitution, understand the dangers it was designed to protect against, and ask how that task should be approached today.  What is the MECHANISM that must be maintained and repaired to prevent a society's collapse.

    2) Call it the Hari Seldon school --from Isaac Asimov's Foundation series:

    3) Several of the Founders were profound students of history and of political philosophy that dates  back to Aristotle and Polybius.   Thomas Jefferson ordered a copy of Polybius from Paris:

    The US Constitution was designed based on the "mixed government" that Polybius had described in 150 BC as giving the ancient Roman Republic much strength and stability.
    See James Madison's "Notes on Confederations Ancient and Modern".  Also, Carl J Richard's "The Founders and the Classics"

    4) The Constitution was designed to steer us past the reefs that have wrecked many civilizations.   But even a Rolex watch needs adjustment and repair from time to time.  The Roman Republic itself fell into chaos starting 50 years after Polybius wrote.

  •  The problem here... (1+ / 0-)
    Recommended by:
    It observes any questioned section of the Constitution and wonders aloud what a sensible person at the time that section was ratified might think it meant, and that what this sensible person believed must be held as the true extent of the law.
    The problem here is, most originalists these days are not sensible people. And since they are not, their insight into what a sensible person might think something meant are questionable at best.
  •  James Madison founded the Democratic Party (2+ / 0-)
    Recommended by:
    ban nock, Wednesday Bizzare

    along with Thomas Jefferson.   He was also the Father of the Constitution --his arguments here in Philly did much to shape it.  It was he who culled the various recommendations from the state ratification conventions and wrote up the Bill of Rights, including the Second Amendment.   All the time weighing and balancing the concerns and counterarguments that had been put forth at the Convention.  It was also he who wrote many of the Federalist papers explaining the design of the new Constitution to the American People.

    Re the militias and Second Amendment, Madison was always clear that the federal government was supreme within its defined powers -- and would have the power to put down any unlawful insurgencies started by minority factions.   However, he also noted that that power had strong restraints and that the People were sovereign --in reality as well as in theory.   In Federalist 46 he argued:

    "Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.

    The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.

    To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.

    It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.

    Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
    Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms"
    Madison's observation still holds --it is difficult for an economy to support more than 1% of the population as full time soldiers.

  •  How to interpret the Constitution? (4+ / 0-)
    Recommended by:
    Dbug, kyril, ban nock, Oh Mary Oh

    Conservatives will usually say the original intent should be followed, and if the original intent is followed, there is no need to interpret.

    I ask them where does the Constitution provide specific  guidance on how it should be read, and then I point out they are interpreting the Constitution if they think the Constitution should be read from an originalist POV.

    Just food for thought.

    ...someday - the armies of bitterness will all be going the same way. And they'll all walk together, and there'll be a dead terror from it. --Steinbeck

    by Seldom Seen on Fri Jan 11, 2013 at 04:01:18 PM PST

    •  good comment by Seldom Seem (2+ / 0-)
      Recommended by:
      Dbug, Seldom Seen

      Oliver Wendell Holmes never heard of original intent when he went to law school. It's just a way for horrible judges like Scalia to advance their own agendas by invoking it. Does Scalia think Marbury v. Madison was incorrectly decided because it's not based on original intent? It's a bogus legal concept and I only first heard it used by the Robert Bork at his confirmation hearings.

      •  Yes (2+ / 0-)
        Recommended by:
        kyril, Seldom Seen

        Both the originalists and the loose constructionists (or "activist judges" or whatever you want to call them) -- both of them are interpreting the constitution as it applies to certain cases or certain laws. If we go exactly by what the constitution says (without any interpretation), we wouldn't need judges to do anything. We could just put everything in a computer. But either way, a judge is interpreting what the Constitution says.

        It seems obvious that Constitutional law must grow and change. The Constitution says nothing about nuclear weapons. Or telephones. Or computer blogs. Does that mean there can be no laws about those things? Obviously not. But the principles of the Constitution (as interpreted by judges) can be applied.

        The thing that bothers me most about the originalists is that they sail in the same boat with the people who say the Bible is literally true. They treat the Bible and the Constitution as divinely inspired, delivered to us by the saints or the founding fathers and never changing. And of course, there are people who tell us that they know what God meant (in the Bible) or what the Founding Fathers wanted (in the Constitution). Their interpretation is the only one that counts. If you disagree with them, you must be some sort of heretic (or activist judge).

        It's funny. Sometimes the originalists/conservatives get into a vicious circle --

        Judges (in Iowa) decide that gay marriage should be legal. Therefore they are "activist judges" because only legislatures should make laws.

        So then legislatures (in Washington state or elsewhere) make gay marriage legal and now, we should put it to a vote of the people.

        Next, the people vote on it, and gay marriage is still legal. So what do they do? They want to take it to the courts.

        So, if you don't like the judges, go to the legislature. If you don't like the legislature, go to a popular vote. If you don't like the vote, go back to the judges.

        “If you misspell some words, it’s not plagiarism.” – Some Writer

        by Dbug on Fri Jan 11, 2013 at 08:50:21 PM PST

        [ Parent ]

  •  Several Misconceptions here (2+ / 0-)
    Recommended by:
    ban nock, Wednesday Bizzare

    1) Some people seem to think that the "militia" is an antique concept.  That is not true -- the current US Code explicitly states that all US males of military age (17-45) who are not on active duty in the federal military are in the Militia --and that there are two groups in that Militia:  Men (and women) who are in the National Guard and the Unorganized Militia.
    2) It should also be noted that only a fraction of the military personnel are combat troops --many serve in support roles.
    3) Some think combat training ranks up there with getting a PhD.  But the largest problem is physical conditioning.   Infantry tactics, use of rifle, etc could probably be taught to a basic , minimal level in 3 weeks -- the National Guard makes up about 40 percent of the Army's combat units and their training requires 1 weekend a month plus two weeks in the summer.

    4) The US Army's "American Military History" notes the major role that the militia played in winning the American Revolution --major battles in which the influence of Continental Army Commander George Washington was"remote".  

    It notes that the Patriot Cause was almost lost in 1780 -- Congress could not raise the money to support the Continental Army.   The entire Southern branch of the Continental Army had been lost by a stupid decision to try to protect the warehouses of the wealthy on the Charleston, SC pennisula --where the Army was trapped and captured by the Royal Navy.
    Leading Continental General Benedict Arnold in fact defected to the British.  The Army goes on to note:

    "It was the frontier militia assembling "when they were about to be attacked in their own homes" who struck the blow that actually marked the turning point in the south.

    Late in 1780, with Clinton's reluctant consent, Cornwallis set out on the invasion of North Carolina. He sent Maj. Patrick Ferguson, who had successfully organized the Tories in the upcountry of South Carolina, to move north simultaneously with his "American Volunteers," spread the Tory gospel in the North Carolina back country, and join the main army at Charlotte with a maximum number of recruits.

    Ferguson's advance northward alarmed the "ova-mountain men" in western North Carolina, southwest Virginia, and what is now east Tennessee. A picked force of mounted militia riflemen gathered on the Catawba River in western North Carolina, set out to find Ferguson, and brought him to bay at King's Mountain near the border of the two Carolinas on October 7. In a battle of patriot against Tory (Ferguson was the only British soldier present), the patriots' triumph was complete. Ferguson himself was killed and few of his command escaped death or capture. Some got the same "quarter" Tarleton had given Buford's men at the Waxhaws.

    King's Mountain was as fatal to Cornwallis' plans as Bennington had been to those of Burgoyne. The North Carolina Tories, cowed by the fate of their compatriots, gave him lime support. The British commander on October In 1780, began a wretched retreat in the rain back to Winnsboro, South Carolina, with militia harassing his progress. Clinton was forced to divert an expedition of 2,500 men sent to establish a base in Virginia to reinforce Cornwallis."

    Ref:  (scroll down to page 89 )

    •  There's a battleground monument/park (1+ / 0-)
      Recommended by:
      Wednesday Bizzare

      in Greensboro (which was named after General Nathanael Greene) that I visited once to learn about the Battle of Guilford Courthouse. (There's information about it in the link you provided).

      The Americans had 1500 regulars and 3000 militias against about 1900 hardened, professional British regulars. A lot of the militias were expected to fire at least once, or twice or thrice (if possible), then they could retreat when the armies closed and it became a bayonet battle. Most of the militias were just farmers, who brought along their hunting muskets to help the Continentals. Many of them, apparently, were Quakers (against violence, in general, but willing to defend their land against the British).

      The guy at the battleground park loaded and fired a musket for us. Rip open the paper packet of gunpowder with your teeth, pour into the muzzle, wad up the paper, push a stick into it, drop in a musket ball, aim, and wait for the order to fire. It takes about a minute (sometimes less if you're good at it). Muskets don't have a lot of accuracy, so there would be three lines. One that just fired (moving back behind the others to get ready to reload), one that's firing, and one that's loading up.

      The British won the battle of Guilford Courthouse, but it was a Pyrrhic victory. Someone in the British parliament later said, "Another such victory as this and we are lost."

      Anyway, when I read the second amendment, I think of those Quaker farmers in NC, going to help out the regular army. I think that's the original intent of the 2nd amendment.

      “If you misspell some words, it’s not plagiarism.” – Some Writer

      by Dbug on Fri Jan 11, 2013 at 09:11:08 PM PST

      [ Parent ]

      •  One of my ancestors fought at Guilford Courthouse (1+ / 0-)
        Recommended by:

        and was wounded there.   He was in the third type of military unit -- the North Carolina State Line.   Units similar to Continental Army -- and often made up of veterans from the Continental Army -- but paid and commanded by the state legislatures vs George Washington and Continental Congress.

  •  Why would... (2+ / 0-)
    Recommended by:
    ban nock, Wednesday Bizzare

    The government need to write in an amendment to protect its own rights? If the second amendment were removed, would it no longer be able to give guns to soldiers and police?

    If it were a right for the government, why say "the right of the people"? Is there anywhere else in the entire Constitution, or even other works of the Constitution's authors, where "the people" refers to the government, and not citizens?

    With the concept of state militias quickly becoming invalid in favor of a standing army, how do the courts view the Second Amendment?
    What's "invalid" about the concept of a militia? It's a solution of last resort for the worst sort of catastrophes (granted, catastrophes that I gladly admit are fanciful and get more absurd from there). If you choose to have a standing army by voting for politicians that insist on having such, despite how bad an idea that is, why would the rights granted for militias no longer apply to those who rightfully belong to one?
    •  Concept of a militia (0+ / 0-)

      They no longer apply on a de facto basis because the intended purpose for militias (as a primary defense against foreign and internal conflict) are no longer valid. Those rights still exist, but the main reason militias were called out has been rendered obsolete. We have a standing army. The closest thing to a militia in the modern day is the National Guard, which the states do call upon in times of emergency.

      And even the National Guard- while it has separate branches in all fifty states- is organized on the federal level, and has been since 1903. They are useful, but they are not the primary deterrent against foreign armed conflict.

      If a tree falls in a forest and no one is around to hear it, does that mean Bigfoot did it?

      by VTHokie011 on Fri Jan 11, 2013 at 07:07:52 PM PST

      [ Parent ]

      •  That is not quite true (2+ / 0-)
        Recommended by:
        ban nock, Wednesday Bizzare

        1) National Guard made up about 40% of Army combat troops in Iraq.  (Army Reserves are mostly support units--logistics, etc.)
        2) A number of states have additional militias that are not part of the National Guard --although they are part of the overall US Militia that Congress can give to the State Governors or to the President.
        3) And , as I noted above, all US males of military age (17-45) are part of the Militia and subject to callup for duty.

        This would likely occur in a major national emergency -- nuclear war, avian flu pandemic,etc  -- when the US President has essential dictatorial powers needed to reconstitute the economy before supplies run out and people start dying for lack of food or medical care.  There will be a need to draft people into needed labor units.
        However those dictatorial powers are subject to Congress's approval every few months.

        4) As James Madison noted, the  total Militia will always be  far more powerful than the active federal military.   This is an important point, because Congress controls who has command of the Militia units --the President or the State Governors-- in order to deal with the 3 possible threats to the nation.  

        5) In the event of an illegal domestic insurgency by a minority faction (e.g, Southern Confederacy) or threat by a foreign enemy, the units can be given to the President.

        6) In the event of an attempted Presidential coup --e.g, a President who refuses to relinquish emergency powers after Congress deems the emergency is over or who refuses to accept Congressional impeachment -- Congress can give command to the State Governors and call on them to protect Congress and arrest the President.

        7) Unfortunately, Congress has given up much of that control in recent decades and given the President the ability to take over the Militia whenever he wants, without Congress's approval.  

        And laws like the John Warner 2007 act can not be changed unless Congress can override a Presidential veto.

        That is a FAR greater long term threat to the Constitution than a gun control law.   The fact that the NRA's Wayne LaPierre does not see  that indicates that Wayne is either a Fool or a Fraud -- or both.

      •  The NG is not a militia. (0+ / 0-)

        They are merely another branch of the Army Reserve. They were activated and sent overseas far too often for any honest person to call them anything else.

        And even if that were not the case, it's laughable to call them a militia.

        Meanwhile, what an actual militia is happens to be nothing more than all the adults in this nation who are not otherwise disqualified (felons, disabled, etc). So the militia still exists, even if the government has no use for it.

        •  Militia Defined in the US Code (0+ / 0-)

          "(a)The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

          (b)The classes of the militia are—
          (1)the organized militia, which consists of the National Guard and the Naval Militia; and

          (2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. "

          NOTE:  It used to be the case (and I think it still is) that the total air defense of the continental US was in the hands of the Air National Guard, not the US Air Force.

          •  PS Definition of Militia not in the Constitution (0+ / 0-)

            but was defined by Act of Congress back in 1790 although there have been some changes over the past 220 years (originally said all WHITE males between age of 17-45 )

          •  So even US Statute agrees? (0+ / 0-)

            Then why all this namby-pamby arguing over how it really doesn't protect the right to own firearms?

            I would point out that I think the point about women not being in the militia (other than if part of the NG) is rather sexist. A more liberal reading of later amendments makes it clear that it applies to women as well.

            •  Well, Constitution also says Militia will be (0+ / 0-)

              subject to the "discipline prescribed by Congress"--
              and under the command of State Governors (unless called into federal service).

              So maybe the fix is to let people have assault rifles --but order them to all be locked into gun safes and not touched until Congress says otherwise.  On military bases, active duty soldiers have to secure both their personal firearms as well as the issued weapons in the armory.

              Why have the guns dispersed among 100 million households?  Well, one argument is that if the British had successfully seized the Patriot armory at Concord (Battle of Lexington), then the Revolution  might never have got off the ground.

              This subject is worthy of more than simple soundbites -- and I think if that real discussion was held, the NRA would in the end be put in a very uncomfortable position.   As I have noted, it went along with some actions by Bush and CHeney that are a far greater threat to the Constitution than a few gun controls.

    •  If I understand your question . . . (0+ / 0-)

      the issue was the protection of state militias from abolition by the federal government.  The amendment isn't about the federal trying "to protect its own rights."  It's about protecting the rights of the states against the federal government.  

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Fri Jan 11, 2013 at 09:25:18 PM PST

      [ Parent ]

      •  No it was not (0+ / 0-)

        The US Constitution expressly prohibited the state governments from having their own armies outside the control of Congress.

        The Militia is under the control of CONGRESS.   It can give command of the Militia to the President if the threat facing the Constitution is an illegal insurgency (Confederacy) or a foreign enemy.  

        However, the Congress can leave the Militia under the command of the State Governors if the threat is a rogue President who won't accept impeachment or relinquish essentially dictatorial powers that Congress grants him in a national emergency like nuclear war.

        People should google "Newburgh Mutiny" -- after the Revolutionary War was won, Congress reneged on its promise to give Continental Army officers life pensions and there was a move within the Army to overthrow Congress.  George Washington had to intervene to ask for patience while he worked out the pensions with Congress.

      •  A rogue unit of the Continental Army took (0+ / 0-)

        Congress prisoner here in Philly.   Congressional secretaries spent money in the taverns and got the soldiers drunk so that the Congress could flee to the protection of the Princeton NJ Militia under cover of darkness.

        Imagine Paul Krugman in a flannel nightgown, carrying a musket and with a pissed off look on his face because he has been woken out of sleep to protect a bunch of people like Lindsey Graham.

        A few years after that incident, the sum total of Army personnel consisted of 4 or 5 caretakers at the West Point fortresses.

  •  Let's Say "Neither" (1+ / 0-)
    Recommended by:
    Oh Mary Oh

    I don't hold to either the originalism or living Constitution ideologies. I think the Constitution is a contract and we should view it through the eyes of contractual law.

    In my view the Constitution is a contract between the government and the people. For one thing, you have to ask what gives the constitution force? It's legitimacy isn't derived from some previous power that created it. It came about organically because the people adopted it through conventions and votes.

    So, I think what it says matters. For example, when it says, "Congress shall make no law" it means that Congress shall make no law about the subjects listed (freedom of speech, for example).

    What do people currently believe the language means? Do the people right now agree to what the government is doing?

    For example, is it possible for our government to keep people in detention in Guantanamo indefinitely? Or is that against the agreement we have with the government?

    The evidence is that indefinite detention is unconstitutional because the plain text of the document says so. If we, as a people, wanted to change that, then there's a legitimate way to do that. It's called the amendment. You get an amendment passed, and then what we've agreed to changes.

    As for the SCOTUS being in charge of the Constitution, that's a profound misconception of the document. First of all, no one person, group or institution owns the Constitution. It's broadly ours, as a people. Anyone can have an opinion about what it means, and that opinion is valid (if not always enforceable). The founders believed that each part of the government was responsible for defending the Constitution. They believed that if Congress passed an unconstitutional law, for example, that the President would veto it. If one house wanted something unconstitutional, the other house would stand up against it.

    This was rooted in something we've clearly lost: the idea that politicians were men of honor, and that honor counted greatly in our opinion of them. This is why pledging your "sacred honor" to the cause of separation from England carried so much weight. Someone might think, "Well, they pledged their lives, but anyone can do that. However, these guys pledged their sacred honor, so I've got to go get my musket and fight with them."

    Imagine someone like Newt Gingrich claiming that he did something because of his sacred honor!

    Your opinion means something, too. What you believe and what you say is part of what gives our government its legitimacy (such as it is). We need to make sure our politicians understand that we have an opinion about the Constitution and we hold them accountable for living up to their part of the contract. We need to make sure that we are judging them on whether they are honorable. Or, are they simply expedient, like the unfortunate honorless people in Congress who voted for the NDAA or FISA or "Patriot Act" without stripping those vehicles of the baggage of obviously unconstitutional provisions?

    You are the judge who decides the meaning of the Constitution. You give it legitimacy or fail in that effort. Because you are the people and you are party to that contract. Don't let them violate it without protest.

    •  I concur. The idea that the Supreme Court has (3+ / 0-)

      final say is wrong.   In a legal sense , yes.   But you can't have a democracy  of 310 Million people made into slaves to 400 billionaires by the sophistry of 5  old men.

      If people think Citizens United is wrong and unconstitutional, they should press Congress to impeach and remove the judges responsible.   And if members of Congress don't do that, they should be replaced in the next election with someone who will.    

      That is not a step to take lightly , obviously, but the People are sovereign, not the Court.   The Constitution doesn't even define the Court  --or the number and nature of judges.  It just says there has to be one.  

      •  Not Impeach (1+ / 0-)
        Recommended by:
        Wednesday Bizzare

        Impeachment is for people who commit crimes or exhibit real wrongdoing, not just wrongheadedness. The real fix for Citizens United is an amendment that makes it clear only natural persons have rights protected by the Constitution, not artificial persons.

        Still, what would the SCOTUS do if Congress passed a bill that said, "No, our interpretation of the Constitution is that businesses don't have the same rights as humans, and we are going to regulate their speech"? Who do you go to for an opinion about that conflict?

  •  Good post in that it has generated many thoughtful (1+ / 0-)
    Recommended by:
    Wednesday Bizzare


    How big is your personal carbon footprint?

    by ban nock on Sat Jan 12, 2013 at 03:15:06 AM PST

  •  A true originalist interpretation of the 2nd Amend (0+ / 0-)

    would not be Scalia's interpretation. Scalia's version of the Second Amendment (that its scope is centered on individual self-defense, particularly in the home, and for weapons 'in common use') is actually an example of living constitutionalism. Scalia morphed the meaning of the original text in light of post-enactment developments.

    Scalia's result is 'self-defense guns = protected," and "arms most useful in a militia that could fight against a standing army (such as machine guns) = unprotected." He may call it originalism, but his stated originalist method would lead to the opposite result.

    The Second Amendment reads: "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." Imagine it's 1791. Congress attempts to pass two different laws. Law A would ban the keeping of militia rifles in common stores. Law B would ban the carrying of pistols within the nation's new capital.

    Under a true originalist interpretation, it is Law A that clearly violates the Second Amendment, while Law B probably does not. Under Scalia's new interpretation, it is Law A that clearly does not violate the Second Amendment, but Law B was the exact kind of law struck down by Scalia and his conservative pals.

  •  Regarding "Originalism" (0+ / 0-)

    The goal of our Constitution was to guide the creation of laws that would "... form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." 

    Current SCOTUS interpretations of the Second Amendment work against the goals of our founding document. We must adjust the jurisprudence of weapons laws so that they support original intent.

    "The skeleton in the closet is coming home to roost!" Tom Stoppard

    by Apotropoxy on Sun Jan 13, 2013 at 07:00:28 AM PST

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