The E.P. was meaningless as it only applied to areas no longer part of the United States. It freed no one.

/threadjack

Where would James Madison have obtained knowledge of these canons and exactly were the canons, when he made the statement in question?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

I know, Marcus. Sir William Blackstone was a man who wrote a famous book in which he made a few observations concerning the interpretation of laws. Please stand up and tell the class what the great Blackstone said regarding the interpretation of laws, since you claim to be such an expert on Blackstone and the interpretation of laws.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

You have just enough information (distinct from knowledge) to make yourself look exceptionally ignorant.

You don't know the difference between meaning and interpretation. Blackstone is a collection of essays on the MEANING of English Common Law, not a guide for how to go about interpreting legal texts in general. I guarantee if, that if you were to find ANY passing references in Blackstone to general rules of interpretation, you would find that they are merely examples of the canons of construction you are demonstrably (if not willfully) ignorant of.

I am not waisting anymore of my time engaging with somebody too ignorant to even understand the basic concepts being discussed.

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"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 read you to say that you have no idea where James Madison would have obtained knowledge of the canons of interpretation.

I also read you to say that you have no idea what the canons of construction were when James Madison made the statement in question?

I further read you to say that you don't know what Sir William Blackstone said regarding the interpretation of laws.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

Then your basic comprehension of English is and ignorant as that of the law.

How about this. You provide a single citation from Blackstone that provides a general rule for interpretation of legal texts.

If you are not completely ignorant, how about you provide what YOU understand the common law rules of construction to be. Put up or admit your utter ignorance.

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"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

You will find Blackstone's comments on the interpretation of laws in the Introduction to Blackstone's Commentaries on the Laws of England.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

Provide a specific example that proves Blackstone's Commentaries are a general guide for the interpretation of legal texts as you've maintained.

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"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

Here's the problem with originalist judicial philosophy. If one is to interpret the Constitution in the sense intended originally by its framers, one must first ask: which framers?

The Constitution was adopted at a convention of delegates from all the states, and so represents a collection of compromises between competing and conflicting interests, but one may identify two men in particular whose intellectual contributions shaped it more than any others. One of these two men was James Madison (and, through him, Thomas Jefferson, who had no direct impact on the proceedings but many of whose ideas Madison represented). His influence is great enough that he is sometimes referred to as the "father of the Constitution."

But the other man was, in my opinion, even more influential. It was largely at his urging that the convention was called in the first place. He had been calling, as an officer in the Continental Army during the Revolutionary War, as a Congressman under the Articles of Confederation thereafter, and as a private lawyer and assemblyman in the New York legislature after resigning from Congress, for a stronger central government for years. Although his voting power as a delegate to the Constitutional Convention was literally nil (he was outvoted by the other two New York delegates, who consistently disagreed with him, until they resigned in protest, and then could not vote because each state had to have at least two delegates present for their votes to count), his intellectual influence on the final document was huge. He was also the most powerful voice of all in support of the Constitution's ratification by the state of New York, having written the majority of the Federalist Papers.

His influence was far from total. The document as it finally emerged did not include the lifetime presidency or Senate that he wanted (subject to "good behavior"), nor the absolute presidential veto, nor the federal power to appoint state governors. But many of his preferred provisions did become part of the document, and overall it reflected his own stronger-government views more than it did Madison's (and Jefferson's) weaker-government views, although the compromises between the two are easily seen.

His name was Alexander Hamilton. And his philosophy of government was in sharp contrast to that of Madison. So which "original intent" shall we go by?

It's my belief, although I have no direct evidence in support of this, that Hamilton is responsible for much of the vague empowering language in the Constitution, especially in Article I, Section 8, which can be interpreted to give Congress overwhelming powers, indeed much more power than it has so far accrued:

There are other portions of this section which are more limited in scope, but the language above can be interpreted so as to empower the federal government to do just about anything it wants, subject to the explicit limitations which detail specific things it is NOT allowed to do, e.g. award titles of nobility, pass ex post facto laws, or make laws respecting establishment of religion.

I believe that Hamilton was the genius behind this language because it is hard for me to credit that Madison (or Jefferson) could have been. Absent Hamilton's influence, I am certain that the language entitling Congress to raise and collect taxes would have read something like "to pay the debts and provide for the carrying out of the powers herein enumerated," rather than that broad and all-encompassing authorization to spend any public money needed to "provide for the common defense and general welfare." Nor would Madison, on his own, have approved of an ability to fund a navy without limit, and certainly not an army with a limit that was meaningless, as Congress need only renew the funding every two years. (It actually does so every year, and sometimes more often, for the navy as well as the army.) Nor do I believe Madison would have thought on his own of empowering Congress to "regulate commerce among the several states," but would instead have limited the federal government's power over the economy to coining money, borrowing money, and regulating trade with foreign nations.

This language is subject to a wide range of interpretations, and just because something is allowed by it does not mean this action will automatically be taken. At the time the document was framed, Hamilton had a vision for America's future that was dramatically at odds with Jefferson's. Jefferson wanted an America composed primarily of independent small-scale farmers. Hamilton wanted an industrialized economic powerhouse. Hamilton wanted strong government and a central bank because these would serve to build that industrialized nation and to govern it thereafter; Jefferson did not because he did not want us to go that direction. Hamilton won the debate over the Constitution's language (I believe), but Jefferson's side won the subsequent political struggle, and so the strong-government provisions that Hamilton had built into the Constitution slept in dormancy for years. But eventually Hamilton's vision won out, as the nation did become an industrial powerhouse, and as it did so, the provisions were there in the Constitution allowing for an appropriate structure of government. And that is what we have today, along with some amendments which did have to be passed.

A lot of words, but what they come down to is this: We cannot use the original intent of the framers as our guide when interpreting the Constitution because there was no single original intent. And so some other principle must guide us.

Edit: About the Air Force -- "Congress shall have the power to lay and collect taxes . . . to provide for the common defense . . . of the United States." An Air Force, although neither an Army nor a Navy, strictly speaking, helps provide for the common defense, and is therefore an authorized expense by Congress. There, see how powerful that language is?

Wrong, because a proper originalist seeks to apply the constitution based on what its text was understood to mean generally, not on the "intentions" of the founder.

The problem with anything and everything OTHER than originalism is that the very legitimacy of judicial review is based on a fixed meaning to the document. If the meaning of the text is meant to be fluid and changing, why isn't it legitimate to say that the meaning of the Judical Power has changed over time?

While even originalism may not always provide clear-cut answers, it is nonetheless the only LEGITIMATE goal of judges. Otherwise, you do not have rule of law, you have rule of judges.

Furthermore, the notion of a changing constitution defies the very purpose of a WRITTEN constitution.

To anyone who has ever bothered to educate themselves on originalism/textualism, you would see that there are a great many time tested tools for going about this exercise.

But the single most important aspect of originalism is that unlike any other judicial "philosophy" it actually CONSTRAINS the judge.

I recommend the following speeches as a good starting point: http://www.joink.com/homes/users/nin.../ww3-14-05.asp

http://www.joink.com/homes/users/nin...ua10-18-96.asp

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"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

But even so, it was interpreted to mean different things by different people. What's more, circumstances have arisen which could not possibly have been foreseen by those living at the time. For example, it's beyond comprehension that the people of the late 18th century could have intended for Congress to have the power to regulate the gas mileage or pollution emissions of automobiles, since at that time there were no automobiles in existence. Or, as has already been pointed out, that they could have intended Congress to fund an air force. But the general language entitling Congress to do that was provided: it can "regulate commerce among the several states," and it can "provide for the common defense." Hence mileage standards, and hence the Air Force.

What I believe is that the vague empowering language exists precisely because the framers (or at least Hamilton) knew that they could not foresee in detail exactly what the government would need to be able to do in the future as circumstances changed. So a certain amount of flexibility on the part of the government was needed, and there were two ways this need could have been met.

On the one hand, what the government was empowered to do could have been made explicit, narrow, and tailored only to the needs of the day, but the process of amending the Constitution made relatively quick and easy, so that changes could be made to meet emerging and unforeseen needs.

On the other hand, the government could have been broadly empowered, but restrained by explicit guarantees of rights, and the amendment process made relatively slow and difficult, so that the powers of the government could change as needs changed, but at the same time the basic checks and balances and guarantees of liberty would be preserved against popular whim.

Obviously, the framers chose the latter course.

No, it isn't. That principle arises out of a case precedent in Marbury v. Madison in 1803. There were a number of constitutional issues involved, but one of them was whether a conflict between an act of Congress and the Constitution should be decided in favor of the one or the other. The Constitution doesn't explicitly say. The Supremacy clause of Article VI states:

Chief Justice Marshall's opinion in the case held that because the Constitution is mentioned first, before the "Laws of the United States," it holds a superior position, but that is actually a bit of a logical stretch; the plain interpretation of this passage recognizes no possible disharmony between them. It only elevates federal law over state law, so that state law cannot be used to nullify federal law. Yet it is, as we know, perfectly possible for acts of Congress to conflict with the Constitution, and the Court had the choice between interpreting the clause that way and so affirming Constitutional supremacy, or interpreting to the contrary and seeing the Constitution itself nullified by acts of Congress, rendering the entire basis for the government null and void. As a practical matter, obviously they made the right decision, but it cannot be pretended that they were not "legislating from the bench" in doing so.

It's really not that "the meaning of the text is meant to be fluid and changing." It's that many passages of the Constitution are sufficiently broad and vague -- deliberately so, in my opinion, at least in some cases -- that they may be interpreted in a number of different ways, all logically justifiable but one perhaps better suited to particular needs.

Anyway, as I noted the power of judicial review was not explicitly provide in the Constitution, but implied in the power of the Supreme Court to review cases and to be the supreme judicial authority. If it said it had the power of judicial review, who was going to gainsay it? And yes, the precedent of Marbury could indeed be overturned by a subsequent decision, but don't hold your breath.

Have you read what Blackstone said in the Introduction of his Commentaries regarding interpretation of laws?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

I have read Blackstone's Commentaries on the Laws of England thoroughly and numerous times. Please cite a specific passage you think demonstrates your point. If you do not do so, I will take that as meaning you can find none.

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"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

Have you read what he said about interpretation of laws in the Introduction of this Commentaries?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

The Constitution should be interpreted according to the law, at the time it was made, regarding the interpretation of legal instruments. Does anyone but me know what the law of legal instrument interpretation was in the late 1780's - 90's? Does anyone care?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?