That sounds to me like a clever pretext for a Judge to substitute his personal views for the will of the lawmakers at the time the Constitution was made.

It would seem to me that the fundamental object of Constitutional interpretation should be to ascertain the will of the lawmakers at the time they made the U. S. Constitution. That was the object of legal interpretation, according to the common law "rules of construction", at the time the Constitution was made.

What rules and principles keep a judge's bias from influencing his ascertainment of the general and reasonable understanding of the Constitution at the time it was made?

What are the most natural and probable signs of the general and reasonable understanding?

This is what it's going to work out to in practice anyway, due to the semantic criticisms of the other philosophies which other posts here so far have just touched on.

In the end, we have courts to determine questions of fact but also to interpret the law. They HAVE to interpret it, in order to enforce it, and that process, like it or not, usually boils down to the above.

This is why judges are so important.

Try reading the entire post. I listed several other general rules for interpreting legal texts which answer this question.

Again, try reading my entire post, which part of the following is not clear to you:


No, it is exactly the opposite. It constrains the judge, whereas a "living" constitution is license for judges to substitute their personal views for the clear text and generally undeniable general understanding of the constitution at the time of its ratification.

Actually it was not, common law rules have always been to give words their generally understood meaning unless it meets certain exceptions under the canons (i.e. if a law is dealing with a highly technical area and a more technical meaning of the word thus makes more sense in the context of the law than the general meaning of the word.

We are not governed by the will of the legislatures, we are goverened by the law as passed. The law is nothing but words, and the common law tradition is that they be interpreted based on their general meaning.

Again, go back and read my post.

Go back and read my post

Well DUH, of course they have to interpret it, but the question is HOW are they supposed to interpret it? They are not empowered to MAKE the law, they are bound by the law as written, the question then becomes, what is an intellecutally legitimate method for determing WHAT the law is.

Let me ask you this, what, if any Supreme Court opinions do you disagree with, and on what basis?

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

I did. What's the rest of the rule regarding "one meaning more sensible?" What do we do with the meaning that we decide is most sensible.

Are you saying that if there are two or more equally sensible meanings, we just move on the next rule without determining which meaning is the most reasonable?

Are you saying that "actions promulgated" trump the actual words of the Constitution.

What if any ambiguity of the language in the Constitution has be resolved (using the traditional common law "rules of construction") and the resulting interpretation is in conflict with the "actions promulgated" after the Constitution was adopted? Which prevails, the "interpretation" based on the actual words of the Constitution and the common law 'rules of construction', or "actions" by the lawmakers after the fact?

Assuming that your rules should be used, that argument fails, because the Congressional Chaplainships weren't established by those who gave legal effect to the First Amendment. The First Congress merely framed the First Amendment. The several state legislatures were the bodies that actually made it the law of the land.

Well, you would have to give a specific example, if you can't grasp the general concept of common sense.

Maybe you should look up the meaning of the word "equally". By definition of you have two EQUALLY sensible meanings NEITHER OF THEM is the "most" reasonable. Hence, you rely on the multitude of other canons.

No, I am saying that actions promulgated as indications of what the words were generally understood to mean would trump a modern judges interpretation of what they meant if that is contradicted by the actions of those who by virtue of having wrote and ratified them were much more in touch with the original understanding than a judge today.

Basically I am saying if something was never considered to be unconstitutional when the constitution was ratified, nor by anyone since that time based on the long standing and uninterrupted traditions and customs of our society, than on its face a modern interpretation that renders that history as being in violation of the constitution is not a reasonable interpretation of the words.

Go back to my example. Given the fact that the position of Congressional Chaplain (paid for by U.S. taxpayer funds) was not understood by anyone to be proscribed by the First Amendment (as evidence by the continued existence of that position to the present day) it would not be a reasonable interpretation of the words to decide they actually DO proscribe that which has been done for all this time.

Scalia told a wonderful story from his highschool days in which the class was studying Shakespeare and some smart-ass classmate made a piffy comment critical of one of the plays; to which the teach responded "Mr. so-and-so, when you read Shakespeare, it is not Shakespeare who is on trail...you are". In other words, when an interpretation of the text results in a conflict with the long-standing accepted traditions and customs of our society, it is the interpretation at fault, and not the long-standing traditions and customs.

That is the difference between judges faithfully interpreting and applying the law and making the law.

They are one and the same, the reliance on actions promulgated by contemporary lawmakers as evidence of the original understanding is PART of the common law Canons you refer to.

You really aren't grasping this. Nobody is denying that the WORDS of the constitution are despositive, the question is how does one go about determining what those words were generally understood to mean when they were given force of law.

Let's take the Establishment Clause, for example:

What exactly did those words mean when they were ratified?

Not under the canons of construction. Now, if you could show widespread OPPOSITION and, oh, say COURT challenges to such institutions at the time suqsequent to the ratification of the First Amendment, then you may have an case to make that it was not a generally acceptable practice under the First Amendment.

Let's try a different, clearer example. The Death Penalty. How can something that is expressly and affirmatively anticipated by the constitution have become unconstitutional absent any amendment abolishing it?

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

It appears to me that it liberates the judge from the will of the lawmakers at the time they made the Constitution.

If the Constitution wasn't a living breathing document, we would have to dismantle the U. S. Air Force.

Seriously however, both the "living Constitution" theory and your theory allow the judge to deviate from "the will of the lawmakers at time they made the law", which was the standard of legal interpretation at the time the Constitution was made.

Nonesense, the canons of construction ARE the method by which Judges are TRAINED and supposed to do so.

Nonesense, the "U.S. Air Force" is a semantic distinction, it is an internal organizational distinction which has no substantive constitutional distinction from the army or navy. Now, one could argue that based on the distinction made between the army and the navy in the Constitution that it would constitutionally represent something that is more akin to the Navy.

That said, you touch on a fundamental distinction that has NOTHING to do with most constitutional interpretation. The law has always recognized the eventuality of existing law having to be applied to what would have been utterly unforseable situations and facts when it was written (this is almost exclusively the result of technological advancement). That is FAR different from saying that the law CHANGES vis-a-vis not only foreseable, but explicitly addressed contemporary issues.

Take freedom of speech and press. The internet not only didn't exist at the time of the ratification of the First Amendment, but was utterly unforeseable. Does that mean the basic principles outlined by those two clauses (protection of the spoken and written word--"press" did not refer to the news media as we use it today, but to the printing "press" which was the ONLY method for widespread dissemination of ideas at the time) have "changed" or have they simply been applied to new and unforseable situations?

I think if you would find that the canons of construction are much easier applied in practice than in the abstract. You can imagine all sort of factless "whatifs", but I would submit that once you start fitting specific facts into the mix, most of your abstract questions and concerns would be pushed aside rather readily.

Take the Death Penalty. Is it, or is it not permitted by the Constitution?

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Marcus:

With your permission, let’s revisit the issue of the overall objective of Constitutional interpretation.

First, I understood you to say that the primary object should be to determine what “would have been generally and reasonably understood to have been the meaning of the words in the Constitution, when it was passed.

Later, you seemed to modify the primary objective to be “the reasonable and general understanding of that law by those who gave it effect at the time it was so done.”

Would I be correct to understand that you believe the fundamental goal of interpreting the Original [unamended] Constitution and the Bill of Rights should be to ascertain the reasonable and general understanding of those instruments/document by those who gave it effect, at the time there were given legal effect/ratified?

Sorry if the phraseology made it appear as though I were modifying what I originally said, I discuss this frequently enough that at times certain things I take as going without saying.

I would say that would say that the text of a law should be given the meaning the general had at the time they were given effect. The Canons of Construction are merely ancient "rules" for going about determining that where there is any question.

No, that is not to say that this goal is never a difficult one, but anything short of this goal is the very license you would otherwise decry Judges being given to invent rather than interpet the law.

It is not the original "intent" of the law (either of the lawmakers who wrote, or the people who ratified), but rather than generally understood meaning of the words themselves which is the object. We are a nation of laws, not a nation of intentions.

You seem to dismiss this as being somehow impossible, but it is not. Once you move away from the abstraction (which has no relevance in the discussion of the work of Judges, which deals with facts and not abstracts) and deal with factual situations, I think you will find that the canons work rather effectively in constraining judges who make an honest intellectual effort to adhere to them.

Now, that doesn't mean that intellectually dishonest judges will not try to contort the law to their will, merely that it is harder for them to do so readily. As Scalia says:

I would suggest you read that entire address as well as the following:
NINOVILLE - an Antonin Scalia reference site
NINOVILLE - an Antonin Scalia reference site
NINOVILLE - an Antonin Scalia reference site

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Which "general" are you referring to, why should he be the authority and how do we figure out what meaning he gave to the text?

typo didn't mean to include the second "the" in the underlined portion. If you couldn't figure that out (in the canons of construction it would be referred to at Scrivener's error) then we can certainly cross your name off of any long-lists for judicial appointments *grin*

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Now, I have absolutely no idea what you believe the object of Constitutional interpretation should be.

I would say that the text of a law should be given the general meaning it had at the time it was given effect.

There, fully caffinated articulation (after my afternoon coffee)

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Too many to go into, but a good example is this recent one extending Eminent Domain to private parties. It illustrates what I'm saying. Constitutional or not (although I don't believe it is) it's NOT in keeping with modern concepts of what's the decent thing to do.

What's an intellectually legitimate method for determining the law indeed, and are you following it? and no you aren't or yes you are, and blah, blah, blah ad nauseam. Like was wisely said a few posts back, they did it this way anyhoo but just lied about it. I don't agree with lying in this case, though. It's the tangled web thing, eventually you forget what was the lie and just go along as if it's truth.

I'm not saying you should ignore the Constitution by any means . I'm saying that the Constitution is meant to be a broad framework, and it exists within an even broader framework of the general and enlightened ethos of the time. (and what's that? which is why we need good judges)

The FF were great men, but people back then also used to spend Sunday afternoons either watching tortured animals tear each other apart or poking sticks at the inmates in the local asylum, and that was perfectly alright to everyone. Times. Change.