Printable View
I was outside having a smoke when it dawned on me that I didn't have a copy of The Constitution in my house.
So I downloaded a copy.
Now I'm going to need help re-interpreting it, it's been a while (civics class).
Are there any good sources for Constitutional law?
I tried this link: http://lmgtfy.com/?q=Legal+Interpret...s+Constitution
I suspect we're close to the point where downloading a copy of the Constitution will brand you as a "Right Wing Extremist," and get you flagged as a potential terrorist.
That being said, interpretation of the Constitution is at the whim of whatever the most recent SCOTUS decision is. I expect it's going to change quite a bit once BHO picks the next 2 or 3 justices.
the Constitution was not written to be "interpreted". it is to be FOLLOWED. "interpreting" the Constitution is what got us in this mess
Of course I agree with you, but that's not how it's been playing out the last several decades.Quote:
Originally Posted by seaninmich
I do think some amount of interpretation is necessary, applying concepts written 200 years ago to situations that couldn't be imagined then requires it. That doesn't, however, justify the judicial activism we've seen in my lifetime.
I don't think it's going anywhere, though, so the best we can hope for is "like minded interpreters," which we're at least 4 years away from being able to pick, sadly.
Quote:
Originally Posted by dpd3672
So then you have no problem agreeing that there is no way the founders would have ever allowed citizens to own semi automatic weapons and "assault rifles" and high capacity firearms?
No, actually the opposite. The FF had no problem with citizens owning the exact same weapons the military used. As a matter of fact, the Revolutionary War was fought with quite a few privately owned guns.Quote:
Originally Posted by seaninmich
I think there is a point where some things should be "military only," if for no other reason than national security...I don't want anyone with a checkbook to have access to our classified weapons; tanks, fighter jets, etc. There's too much danger of our enemies "catching up" on the cheap, as China has already proven more than willing (and able) to do.
Small arms, though; anything that's mechanical in nature, that isn't made using classified technology, should be accessible to anyone, within reason...not sure how I feel about some of the bigger stuff, explosives and the like. Legally, I think they fall within the spirit of the Constitution, but practically, the idea troubles me. I do agree, however, with the limitations against felons or people with serious mental conditions legally owning guns...something that's not directly addressed in the 2nd Amendment, but is a good "interpretation" of its intent.
If you believe this there is a simple, very simple way to make that happen, AMMEND the darn Constitution. The way the Constitution is written right now I may own a nuclear weapon. The Constitution says I may own any arm I may want and my concealed carry is that I was born.Quote:
Originally Posted by dpd3672
This nonsense about applying "practical" application to the Constitution is just that. The Founding Fathers were pure genius, they were so perfect that they gave us the means to modify the Constitution if "something came up". We have become too lazy to use the means the Founders gave us because it is not politically expedient.
I agree that the way it's written is very simple, and my take on it is the same as yours...anything up to, and including, nuclear weapons, is pretty much Constitutionally kosher.Quote:
Originally Posted by timshufflin
That being said, again, I'm not sure that it's a good idea, and I think the idea of adding amendments to cover each and every scenario that pops up is cumbersome. I think it's ok for the SCOTUS to interpret the Constitution, as long as they keep the intent of the FF pure. The problem we have is judicial activism, justices who use their position as a way to legislate from the bench.
The only remedy, as I see it, is to only appoint justices who interpret the Constitution strictly and narrowly, which unfortunately has not happened for the past 50 years or more.
It is Constitutionally cumbersome and if you think it is it is because the Founders wanted it this way. The Founders wanted us to stick to the damn law, it's pretty simple. It is also not hard to amend the the 2nd amendment so that it can be interpreted how you wish. All that would need be said is;Quote:
Originally Posted by dpd3672
28th Amendment, Congress may pass any law prohibiting arms not classified as small arms.
See now, it's done. You would have a classification table which defines small arms and off you go, oh, I forgot, people will later try and "interpret" what we really meant by "small arms". You can NEVER leave ANY part of the Constitution up to interpretation. Not ever, those in power are all to happy to interpret your life away.
That's my point, though...your 28th Amendment is itself subject to interpretation...it'd be easy, in the hypothetical 29th Amendment to define "small arms" as "any single shot gun in .22LR caliber" and "poof," there goes the 2nd Amendment, for all intents and purposes.Quote:
Originally Posted by timshufflin
I think it's best to simply appoint wise, conservative justices that aren't trying to further an agenda with every decision they make. Unfortunately, that's what we're stuck with, for at least 4 more years, which will probably be at least 2, maybe 3 judges.
Sir, you can get rid of the 2nd amendment right now with a new 28th amendment, you do know that? The 28th amendment would be voted on and say "28th amendment, repeals 2nd amendment" it would be done. Why wouldn't it happen? You need a 2/3rds vote and a constitutional convention baby!Quote:
Originally Posted by dpd3672
You cannot leave any of the Constitution up to interpretation of "very conservative judges" because: 1. there is no such thing and 2. it will be impossible to maintain a court of such judges if there were.
You have to amend the Constitution and amend it perfectly so that there is no doubt and your firewall is that it will take a 2/3rds vote and a Constitutional convention or one of 5 other ways to amend the Constitution. Amending is hard, it is meant to be.
The entire purpose of the SCOTUS, though, is to interpret laws, including the Bill of Rights. If not, who would serve to check a state or local jurisdiction that decided to pass an unconstitutional law?
It's a necessary evil, it's just been abused for much of recent history is all I'm saying.
You don't think that Congress from 2008-2010 couldn't have pushed through a 2/3 majority to repeal the 2nd Amendment? They pushed through Obamacare, it's not too much of a stretch, and if they couldn't, they were dangerously close to a legislature that could. I'm not comfortable with that much power in any one branch of government, be it the legislature, SCOTUS, or POTUS.
Actually, you are incorrect. The Supreme courts job is not to interpret laws, the Constitution does not need interpreting.Quote:
Originally Posted by dpd3672
The Supreme Court's job is specifically to interpret laws, it's their stated purpose.Quote:
Originally Posted by timshufflin
Wanna bet?Quote:
Originally Posted by dpd3672
Sure, whaddaya have in mind?
Friendly, of course, I'm not a gambler.
Quote:
Originally Posted by dpd3672
LMAO!! so you are OK with interpreting the Constitution...so long as they follow YOUR interpretation! LOL.
read article III.Quote:
Originally Posted by dpd3672
I cannot find one word, the word interpret.
Article III.
Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
that is true. the Supreme Court is not charged with interpreting the Constitution. As flawed as the framers were, they weren't completely stupid. The Supreme Courts role is to declare if an act is Constitutional or not. plain and simple. black and whiteQuote:
Originally Posted by timshufflin
Just because the word "interpret" isn't in the Constitution doesn't make the concept invalid. The word "assault weapons" isn't in the Second Amendment, either, which is why we have a SCOTUS to "interpret" laws intended to ban them, to see if they're consistent with the intent of the Constitution.
From the Supreme Court's webpage:
http://www.supremecourt.gov/about/constitutional.aspx
Quote:
"The republic endures and this is the symbol of its faith."
- CHIEF JUSTICE CHARLES EVANS HUGHES
Cornerstone Address - Supreme Court Building
"EQUAL JUSTICE UNDER LAW"-These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.
The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. "The representative system of government has been adopted in several states of Europe," he remarked, "but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people."
The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written Constitution still in force.
The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society's need for order and the individual's right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.
The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.
While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
Despite this background the Court's power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. "It is emphatically the province of the judicial department to say what the law is," he declared.
In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
The Constitution limits the Court to dealing with "Cases" and "Controversies." John Jay, the first Chief Justice, clarified this restraint early in the Court's history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.
The Justices must exercise considerable discretion in deciding which cases to hear, since more than 10,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has "original jurisdiction" in a very small number of cases arising out of disputes between States or between a State and the Federal Government.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."
Uhm, with all due respect, I quote the actual Constitution which is ratified by the founders and you give me that?Quote:
Originally Posted by dpd3672
Here, from the person who actually framed the document;
"In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids." --Thomas Jefferson: The Anas, 1793. ME 1:408
Quote:
Originally Posted by dpd3672
No, the words "SHALL NOT BE INFRINGED" are in the second amendment. that is completely cut and dry. you need only ask ONE questions to determine constitutionality: "Does XXXXXXXXX infringe (at all) on the right to keep and bear arms?". If the answer is YES, then it is absolutely, 100%, without question unconstitutional. If you want to make XXXXXXX constitutional, you require an amendment to the Constitution. black and white. plain and simple
If you want to even try and argue that, you'd better be able to show me the line in the Constitution that starts with "unless", "except", or "but"
I do love this stuff.
Ok, just to establish my position here, I do agree with an extremely broad interpretation of the 2nd Amendment specifically, and in general terms, with any Constitutional interpretation to err on the side of more freedom, rather than less.Quote:
Originally Posted by seaninmich
However, the SCOTUS must interpret, define, and clarify laws as they relate to the Constitution and the Constitution as it relates to everyday life. The 1st Amendment, which among other things prohibits the "abridging" of free speech, has been interpreted to exclude yelling "Fire" in a crowded theater, and the First Amendment does have other limits...you can't show porn to kids, etc.
The Second Amendment, which uses language equally as strong as the First, in my opinion, says the right to keep and bear arms "shall not be infringed." But what do "arms," "keep," and "bear" mean? What does "infringed" mean? These are things that must be defined. "Arms" can be defined as anything from a nuclear missle to a sharp stick, "keep" can mean anything from "own and possess" to "store at a government approved facility," "bear" can mean anything from "ccw" to "hold at the shooting range," and "infringed" can mean anything from taxing to broad confiscation.
Again, my personal belief is that "arms" are whatever is out there, weapons that the "militia" or military would use to go to war. "Keep" means possess or own, and "bear" means to use for their intended purpose. But this is just my opinion, and others would disagree...hence the 2nd Amendment conflict between the left and the right.
You can interpret the Constitution any way that makes sense to you, as can the "other side," but your or my take on it is meaningless, it's just opinion. Those responsible for deciding who is right, the only people whose opinion carries any weight, are the Supreme Court, by way of interpretation. You seem to take issue with the word "interpretation," but that's exactly what they do when they evaluate a law and declare it Constitutional or not...they evaluate the relevant portion of the Constitution, which generally does NOT specifically address the issue at hand, and apply the original intent of the FF to the new legislation. That's interpretation by definition.
And I've been called a lot of things, but this is the first time in my life I've been called a Liberal. Maybe I'm not presenting my case well, but I assure you, there's not a left leaning bone in my body...hell, I just voted "no" on Proposal 2 in Michigan, which actually goes directly against my self interest, being a union police officer in a city that's notoriously hostile to it's cops. I voted on principle, not personal gain...I figured seaninmich would appreciate that, at least.
Anyway, I'll leave it up to the judges if I lost the bet with Tim...if you feel I'm wrong, I'll concede defeat. The stakes haven't been discussed, but I'm thinking some sort of charitable donation would be consistent with a gentlemen's bet.
Quote:
Originally Posted by dpd3672
I'm still waiting for you to show me where, in the U.S. Constitution, the role of the Supreme Court is to interpret, define, or clarify the Constitution. Until that happens, we cannot have an intelligent debate
Quote:
Originally Posted by dpd3672
Sir, charity is dead to me. I will not give so much as a penny to anyone of my free will. I gave April 15th and I want my money back!
This thread is winning... please do continue.
The problem is, as I see it, is that the Founding Fathers assumed that the justices of the Supreme Court would be human beings, and not liberals. liberals are unable to objectively decide on issues as they always have their own agenda. A human being can decide on issues objectively.
What's the late 1700's equivelant to a Liberal?
I'm not sure what group, in the 1700s, was running around championing the causes of abortion, gay marriage, green energy, class warfare, big government, affirmative action, wasteful spending...I guess the closest thing would be royalty.Quote:
Originally Posted by Jimbo Slice
Back to the original topic. I guess we'll have to agree to disagree here. The Constitution is simply a piece of paper. To actually apply it to our everyday lives, it must be "interpreted." Whether or not this wording is found in it does not make it untrue; it's common sense. The Constitution was written broadly enough, by the FF, that it would remain relevant as time passed; but its relevancy is dependent on the wisdom of those who study and apply it.
The SCOTUS is responsible for interpreting laws, including the supreme law of the land, the Constitution. It's in every civics textbook I've ever read, 90% of the Google hits I get, and as close as you can get to common knowledge. Legislative branch writes laws, judicial branch interprets them, Executive branch enforces them...ask any schoolkid, in any city in America, and that's what they'll answer (if they did their homework).
The fact is, it's not your, or my, opinion of what the Constitution means that matters. We're just people with opinions, and for every one that says "A," you can find another that says "B." The only ones whose opinions matter, officially, at least, are our elected officials, and by extension their appointees, who have standing to say what it means or doesn't mean. It's great when "our" guy wins, and it sucks when he loses, but that's what you get in a represtative democracy...it's the very essence of the American way.
A Tory, I think that would be the most freedom robbing position.Quote:
Originally Posted by Jimbo Slice
All kidding aside, DPD does have his points. The Constitution provides for the establishment of a Supreme Court but does not define it's powers or responsibilities. Basically, over the years the Court decided on its own what its function was. That being said it seems the Court's powers are limitless as it can contort and twist to accommodate the Justices personal views.
However, I believe, many people still believe that the Constitution is similar to the Ten Commandments. Both are not open to debate. Keeping the Sabbath is not optional and doesn't need interpretation. Whether or not Dred Scott was chattel or a man was debatable in the 1800's but the Bill of Rights was not. That should be the role of the Supreme Court.
Quote:
Originally Posted by dpd3672
You obviously have not read the document. How can we have an intelligent conversation when you refuse to do your part of the work. With very few exceptions (hunting being the only one that comes to mind), I have not been more than 10' from my Constitution in at least 5 or 6 years. I read it ALL THE TIME. It is not written broadly AT ALL. The exact opposite, in fact. It is written very, very specifically and very, very clearly. There is no grey area.
Quote:
Originally Posted by dpd3672
SCOTUS is not responsible for interpreting the Constitution. Stop saying that as you have failed to prove that point even remotely. Whether they actually DO, or not, is not the issue here. The issue is what they are LEGALLY charged with doing under the Constitution as written.
Civic books? really? you're going to use the propaganda materials of the socialist movement to try and prove your point? History books also portray abraham lincoln as some great president, when in fact he was one of the worst we've eve had (certainly in the top 6). He wiped his ass with the U.S. Constitution and slaughtered thousands of people in the process. The only good thing he ever did was go to the theater.
You are correct when you say that any public school kid will give the answer you are suggesting. I went to two different schools though. The liberal union run public school agreed with you Sir. The private school agreed with me. My College not only agrees with me but believes once you go into this "interpret" nonsense, the Constitution has NO remaining relevancy.Quote:
Originally Posted by dpd3672
It is now common sense that the work week is 40 hours
It is now common sense that when you retire you get social security
It is now common sense that everyone is covered by health care and health care is a right
It is now common sense that the more you make, the more taxes you should pay
It is now common sense that minorities cannot be racists
It is now common sense that you have to wear a seat belt in a car
It is now common sense that you cannot smoke in a private business
It is becoming common sense that you have to wear a helmet to ride a simple bicycle
I reject out of pocket your "common sense". I reject it and refute it because the very premise that makes your "common sense" have legal standing is upside down. The US Constitution is not some toilet paper to be interpreted, it is meant to limit the government and NOT me. The supreme court is supposed to check the executive and legislative branches when those two serpents seek to circumvent the Constitution. The supreme court is supposed to protect the people not by interpreting the Constitution but by simply reading it and ruling on the proposed legislation by what the Constitution actually says.
The Constitution needs no interpretation. By the way, your 1st amendment argument has more holes then the head of a democrat.
I warn you all, do not ever perpetuate the myth that the Constitution needs interpreting, it is exactly the myth that union school teachers want us to believe.
My Battle Tested Brethern, I offer you my summation;
I give the actual Constitution as my "proof". There is no system of "interpreting" listed in the Constitution, not one reference.
dpd3672 gives recent tradition and public school folk lore as proof that the Constitution does not mean what it says and would have you believe that the US Constitution is simply a piece of paper.
I rest, you draw your own conclusions. Whatever your conclusions are though, you must agree with the letter of the Founders. Arguing this point is akin to arguing if water is wet.
Correct Sir, the Constitution does not and did not define what a "man" was. The Bill of Rights Does say how a man should be treated though. Very good example.Quote:
Originally Posted by Punch The Clown