Your view of a constitution (try not to make this too political)

[Brandon]

With the U.S. election approaching, there is speculation about future nominations to the U.S. Supreme Court. Justices are nominated by the President, but must be confirmed by the Senate.  National Public Radio's brilliant Supreme Court reporter, Nina Totenberg, looked at how a President Obama might lean in selecting nominees to the Supreme Court:

...Obama was, in fact, a professor: He lectured on constitutional law for 10 years at the University of Chicago.

Obama's book The Audacity of Hope devotes an entire chapter to the subject. In it, he confesses to having some sympathy for conservative Justice Antonin Scalia's view that the Constitution's language is perfectly clear on some matters and can be strictly applied. But in the end, Obama writes, much of the Constitution speaks in generalities that cannot tell us what the Founding Fathers would have thought about modern dilemmas: whether, for example, the National Security Agency's data mining is constitutional, or what freedom of speech means in the context of the Internet.

"Anyone like Justice Scalia looking to resolve our modern constitutional dispute through strict construction has one big problem," Obama writes. "The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece."

The professorial Obama is on display in this chapter, refusing to provide simple answers or formulas, and rejecting so-called bright lines. "Its not just absolute power that the founders sought to guard against," he writes. "Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth — the infallibility of any idea or ideology, or theology, or 'ism', any tyrannical consistency that might lock future generations into a single, unalterable course."

listen to the full report: Law School Past Shapes Obama's View On Justices

What's your view of how a constitution should be interpreted? Should it be taken literally in all cases? Or should we look to its general ideas and attempt to extrapolate them to fit our modern age?

[Bobbert]

Thanks for the link.  NPR has some really good coverage of issues like this.

I generally lean towards a more strict interpretation of the Constitution.  If it is followed literally on certain subjects, and it is deemed merely a rough guideline on others then it looses it's strength and meaning to the whims of convenience and momentary popular opinion.

That being said, I think the intent of the constitution (if that can be determined on a particular issue) is what must be followed instead of what exactly it might literally say on an issue.

Take the separation of church and state bit for example.  Far from being used to eliminate all religious references and ideas in schools, as is being done now, the intent was most likely to prevent there being any particular government mandated/endorsed religion.  Enforcing the intent of this would allow for education about different religions, but it would prevent school preaching or instruction that children should hold any particular religious belief.  The intent would allow for expression of all religions by students instead of no religions.

Take that idea to the issue of funding Faith Based Initiatives:  They should be funded, the government shouldn't just subsidize a particular one.  Private organizations arguably do a much better job at charity then the federal government does.

[Bobisnekkid]

I have to agree with Bobbert, I believe in the strict interpretation of the Constitution. This strictness must be kept in determining the intent as well. It bodes us well to have a well versed perspective on history in order to understand the reasonings behind the words. To use his example, the founders objected to the establishment of a national religion. The intent of the first amendment's so-called "establishment clause" was not to throw religion or religious discourse out of the public square, but to keep the government from requiring public servants or the people to follow one single religion. The major question then is what constitutes (no pun intended) "establishment". I would say requiring prayers at certain times would fall into that category, but requiring a basic knowledge of the Bible as it pertains to literature does not.

I don't agree at all with Obama's view of the Constitution, it is dangerous in my opinion to have an open interpretation of the Constitution. Rule of law is difficult enough to maintain in society, it's more difficult if the law itself is open to interpretation by whoever is in the judge's seat (and public whims). There has to be some absolutes in a society to keep it from disintegrating.

[KC]

As a first-year law student, I think about this quite a bit. Here I have to take a view opposite to Bobbert and Bobisnekkid. I think a strict and literal view of the Constitution constrains necessary action. I think that it often masks an absurd textualism. For example, while I respect Bobbert and Bobisnekkid's views on school prayer, a literal interpretation misses the well-documented dialogues that led up to the amendment and Jefferson's own interpretation of the establishment clause after he became President. To wit, the 1786 Virginia Statute for Religious Liberty (the prototype of the First Amendment) essentially prohibited any government involvement in religion. Jefferson himself referred to the "wall of separation" between church and state in his 1802 letter to the Danbury Baptist Association. To deny that these were Jefferson's views and that they informed the Constitution seems wrong-headed to me.

I also disagree that a "looser" interpretation of the Constitution is inherently dangerous. Indeed, the idea for faith-based initiatives itself follows from a less strict interpretation of the document. Laws are meant to be interpreted and the Constitution continues to serve as the guideline (despite what the previous 8 years have wrought).

[NickLPMA]

in theory, a Constitution should be taken at it's most literal interpretation insofar as that is determinable. Any constitution ought to have a mechanism by which it can be altered in accordance with popular will. Our Constitution allows for this, although too often it seems people of varying political stripes would rather skip the hard work of the Amendment process and deliberation and persuasion of their fellow citizens in favor of having 9 un-elected, politically appointed judges tell us what is the 'right' interpretation of it. I have problems with people who are not representatives or the people themselves determining law.

but then, as my sig suggests, I think we had a superior constitution prior in our history which allowed for greater government at a more local level where people could hold their representatives in check if not decide the most important issues for themselves.

[Brandon]

I've been meaning to ask about your sig, btw.  I'll have to research that later. 

Getting back to my initial post in this thread, Obama has another point in there which I perhaps should have emphasized:  "The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece."

When the drafters of the U.S. Constitution could not agree, they made the wording deliberately vague or even contradictory.

For example, writing on the separation of church and state provision of the First Amendment, author Steven Waldman suggests that the U.S. Founder Fathers, notably George Washington, John Adams, Benjamin Franklin, Thomas Jefferson and James Madison, intentionally made the First Amendment ambiguous because they disagreed.

Here's an excerpt from a book review written by Barbara Lissin in the Houston Chronicle:

Father of the Constitution and champion of the First Amendment, James Madison believed in "perfect separation" of church and state. Though a religious man, he was convinced the best way to promote faith was to keep it out of the public arena, both locally and nationally.

Others who participated in the wording of the First Amendment did not believe in such a "perfect separation."

(Waldman's book is FOUNDING FAITH: Providence, Politics and the Birth of Religious Freedom in America. By Steven Waldman. Random House, 277 pp. $25.95.)


On the question of whether it is constitutional for the US to have a standing military, commentator Thom Hartmann writes:

"The debates among the Framers of the Constitution led to a clumsy compromise, with the ban on a standing army and universal requirement for membership in a militia chopped away, to be revisited at some (presumably near) future time." CommonDreams.org


The U.S. Supreme Court recently attempted to clarify the confusing wording of the Second Amendment: "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"

The basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

The Bush Administration and the Solicitor General supported a handgun ban in Washington, DC, although Vice President Cheney (who has had some problems with gun safety himself) opposed the handgun ban.

The Supreme Court, in a 5-4 ruling, found the the District of Columbia's handgun ban unconstitutional.

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller 
http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062600615.html

[Bboy1986]

The Constitution should be interpreted strictly, as it was intended, and if something isn't in there and you can't get to it without stretching it very far, then the government has no authority in the matter.

[Brandon]

The Constitution should be interpreted strictly, as it was intended, and if something isn't in there and you can't get to it without stretching it very far, then the government has no authority in the matter.

James Madison, often considered the principal author of the U.S. Constitution, initially opposed a bill of rights because, among other reasons, he felt it was unnecessary since it purported to protect against powers that the federal government had not been granted, and it was dangerous since enumeration of some rights might be taken to imply the absence of other rights.

This suggests to me that his intent was that the powers of the federal government be interpreted strictly, but rights of individuals should be interpreted broadly. In other words, the Bill of Rights  -- Amendments I through X to the Constitution -- which Madison eventually did author (along with George Mason) should be called the Non-exclusive Bill of Rights. Just because a right isn't specifically enumerated there doesn't mean it doesn't exist.

For example, the right to swim nude in any river or stream isn't specifically listed in the Bill of Rights, but it's an obvious right to assume.

John Quincy Adams, the 6th President (1825-1829) regularly swam nude in the Potomac River. http://www.nps.gov/pub_aff/pres/trivia.htm

[Bboy1986]

The Constitution should be interpreted strictly, as it was intended, and if something isn't in there and you can't get to it without stretching it very far, then the government has no authority in the matter.

James Madison, often considered the principal author of the U.S. Constitution, initially opposed a bill of rights because, among other reasons, he felt it was unnecessary since it purported to protect against powers that the federal government had not been granted, and it was dangerous since enumeration of some rights might be taken to imply the absence of other rights.

This suggests to me that his intent was that the powers of the federal government be interpreted strictly, but rights of individuals should be interpreted broadly. In other words, the Bill of Rights  -- Amendments I through X to the Constitution -- which Madison eventually did author (along with George Mason) should be called the Non-exclusive Bill of Rights. Just because a right isn't specifically enumerated there doesn't mean it doesn't exist.

For example, the right to swim nude in any river or stream isn't specifically listed in the Bill of Rights, but it's an obvious right to assume.

John Quincy Adams, the 6th President (1825-1829) regularly swam nude in the Potomac River. http://www.nps.gov/pub_aff/pres/trivia.htm

Actually I agree with you, I think, the Constitution is not meant to to restrict anything except the Federal Government and anything not prohibited is understood to be allowed or up to the states or people to decide.  What I meant by a strict interpretation is to dispel the idea of a "living document".

[MikeSG]

I'm not american but i think the founding fathers set it up or tried to set it up so that any old idiot could run the country as long as they pay attention to a constitution of rights, because they knew they wouldnt be around forever. But I think it should be simplified. They have from what i've seen added a lot of counter ingredients to peoples rights to counter different (counter productive) attitudes instead of simplifying and doing cover alls. But again i don't really look into it much i kind of just wish everything would be more simpler.

[AuFiat]

I'm not american but i think the founding fathers set it up or tried to set it up so that any old idiot could run the country as long as they pay attention to a constitution of rights, because they knew they wouldnt be around forever. But I think it should be simplified....

I'm not sure if it could be simplified any further because it is the shortest constitution in the world. http://www.digitalhistory.uh.edu/modules/constitution/index.cfm

Plus, the original intent of the constitution was to restrict government, so I would be fine expanding the constitution as long as it's expanded in that area 

[Brandon]

The US Constitution was written in 1787, eleven years after the Declaration of Independence.

The US Constitution that we know replaced the Articles of Confederation, the first constitution of the United States of America.

The draft of the Articles of Confederation was sent to the states for ratification in November 1777. The ratification process was completed in March 1781.

Many people believe that the US Constitution was intended to limit the power of the central government. In fact, the purpose of replacing the Articles of Confederation was to strengthen the powers of the central government.

The impetus for writing the Constitution was a rebellion (described below) in the Commonwealth of Massachusetts by landowners whose property was being seized because they could not afford to repay their loans. (Can we say "Foreclosure Crisis?")

In the aftermath of this rebellion, many felt that a stronger central government was necessary to maintain law and order.

Among the drafters of the Constitution, there were of course those who favored a very limited central government and those who favored a stronger central government. The document was really a compromise reflecting the tension between the views.

Shay's Rebellion

Shay's Rebellion was an armed uprising in central and western Massachusetts (mainly Springfield) from 1786 to 1787. The rebellion is named after Daniel Shay, a veteran of the American Revolutionary war, who led the rebels.

Seeking debt relief through the issuance of paper currency and lower taxes, they attempted to prevent the courts from seizing property from indebted farmers by forcing the closure of courts in western Massachusetts. The participants in Shays' Rebellion believed they were acting in the spirit of the Revolution and modeled their tactics after the crowd activities of the 1760s and 1770s, using "liberty poles" and "liberty trees" to symbolize their cause.

The rebellion started on August 29, 1786, and by January 1787, over one thousand Shaysites had been arrested. A militia that had been raised as a private army defeated an attack on the federal Springfield Armory by the main Shaysite force on February 3, 1787, and four rebels were killed in the action.

There was a lack of an institutional response to the uprising, which energized calls to reevaluate the Articles of Confederation and gave strong impetus to the Philadelphia Convention which began in May 17, 1787. Shays' Rebellion produced fears that the Revolution's democratic impulse had gotten out of hand.

http://en.wikipedia.org/wiki/Shays'_Rebellion

[MikeSG]

Well i think they've got a problem if they want it free as well as restrictive to people who restrict freedom of themselves and others.

Might as well put one big fat right in there that says "treat the freedom of others' how they treat your's" or something like that or a no hipocrit bill but that would do everybody in.

[Bboy1986]

The US Constitution was written in 1787, eleven years after the Declaration of Independence.

The US Constitution that we know replaced the Articles of Confederation, the first constitution of the United States of America.

The draft of the Articles of Confederation was sent to the states for ratification in November 1777. The ratification process was completed in March 1781.

Many people believe that the US Constitution was intended to limit the power of the central government. In fact, the purpose of replacing the Articles of Confederation was to strengthen the powers of the central government.

The impetus for writing the Constitution was a rebellion (described below) in the Commonwealth of Massachusetts by landowners whose property was being seized because they could not afford to repay their loans. (Can we say "Foreclosure Crisis?")

In the aftermath of this rebellion, many felt that a stronger central government was necessary to maintain law and order.

Among the drafters of the Constitution, there were of course those who favored a very limited central government and those who favored a stronger central government. The document was really a compromise reflecting the tension between the views.

Shay's Rebellion

Shay's Rebellion was an armed uprising in central and western Massachusetts (mainly Springfield) from 1786 to 1787. The rebellion is named after Daniel Shay, a veteran of the American Revolutionary war, who led the rebels.

Seeking debt relief through the issuance of paper currency and lower taxes, they attempted to prevent the courts from seizing property from indebted farmers by forcing the closure of courts in western Massachusetts. The participants in Shays' Rebellion believed they were acting in the spirit of the Revolution and modeled their tactics after the crowd activities of the 1760s and 1770s, using "liberty poles" and "liberty trees" to symbolize their cause.

The rebellion started on August 29, 1786, and by January 1787, over one thousand Shaysites had been arrested. A militia that had been raised as a private army defeated an attack on the federal Springfield Armory by the main Shaysite force on February 3, 1787, and four rebels were killed in the action.

There was a lack of an institutional response to the uprising, which energized calls to reevaluate the Articles of Confederation and gave strong impetus to the Philadelphia Convention which began in May 17, 1787. Shays' Rebellion produced fears that the Revolution's democratic impulse had gotten out of hand.

http://en.wikipedia.org/wiki/Shays'_Rebellion

Yes this is true.
However the Federal Government was never meant to be the size it is, in fact the way it is now it is pretty unmanageable with so much bureaucracy getting in the way of itself.   I don't think the Articles of Confederation were as weak as many claim but they needed to come up with a compromise.

[Brandon]

However the Federal Government was never meant to be the size it is, in fact the way it is now it is pretty unmanageable with so much bureaucracy getting in the way of itself. 

I am kind of torn on this. Yes, the federal government is unmanageable, but the spiderwebs of state laws and taxes are strangling business. Individuals are also impacted, especially people who move from state to state frequently.

I was just reading an article at journalofaccountancy.com about the issue of "nexus" in the context of taxation. Nexus means connection, and the issue is whether a business has a "nexus" or presence in a state and is thus subject to state income taxes and to sales taxes for sales within that state. In the past, the test was often whether a business owned or leased real estate in the state.

New York state has claimed that amazon.com has a nexus in New York state because of its affiliates program. Thousands, perhaps millions, of websites are amazon affiliates. Some of those amazon affiliate websites are based in New York state. Thus, New York state says amazon owes it taxes. Having to file 48 different state sales tax returns every month (or week, probably, in some cases) and 50 state corporate tax returns every year would be a huge burden for businesses.

Individuals get hit with vehicle registration fees and driver's license fees every time they move to a different state, but those are trivial problems. The big problem is non-portability of health insurance as you move from state to state.

Mobility of labor and capital within the country used to be one of the strengths of the U.S. economy, allowing new businesses to expand rapidly across the country. Europe is attempting to emulate that success with the E.U., but the U.S. is going in the wrong direction, with states throwing more and more hurdles in the way of businesses trying to operate nationally.

So I'd like to see a lot more government centralized at the federal level. But I'd like to see the federal government rationalized and simplified so that it is manageable.

As a Texan, I don't want Texas burdened with all the taxes and regulations that New York and California have.