Being hamstrung by historical interpretation (Founding Father discussion)

[rumborak]

I was listening to an episode of NPR's Fresh Air yesterday, and it was about Gun Control (because of the Tucson event).
Well, the second half of the podcast essentially deteriorated into a discussion on how to interpret the 2nd Amendment. That is, whether the spirit of the amendment is that only people within a well-regulated militia (which was back in the day government-controlled) were allowed to own a gun, or whether the spirit was that every citizen should be able to carry one.
Either way, after a while it struck me that, it seems, the overall question of whether one should carry guns or not seemed to rest on historical interpretation. That is, both liberals and the NRA fought their battle through historical re-interpretation of the Amendment's wording.
And that's not the first time where I had the impression that American politics is hiding behind their Founding Fathers, focusing so much on what they said, that the battlefield has switched from on-topic discussion to historical interpretation instead.

Thoughts?

BTW, I'm fully aware that this thread can go ways; either gun control, or how much the basis of law in the United States should rest on a few historical figures. Either way is fine

rumborak

[ack44]

What I don't understand is the attitude of following the Constitution for the sake of following the Constitution. A country is founded on certain principals, but that doesn't mean you agree with all of them or that you don't want to change the foundation.

[El Barto]

I listened to the oral arguments of a SCOTUS case the other night about applying the 2nd amendment to the states, and kind of thought the same thing.  I understand the importance of setting a legal base that all else is built upon, but it honestly does seem that everything that happens now is dictated by the interpretation of what these people who lived 250 years ago thought was right.  I have a hard time reconciling that the laws of 1780 can be reasonably applied to the era in which we currently reside.  WTF would James Madison know about computers and M4s?

[Perpetual Change]

What I don't understand is the attitude of following the Constitution for the sake of following the Constitution. A country is founded on certain principals, but that doesn't mean you agree with all of them or that you don't want to change the foundation.

This.

The Constitution is, of course, very important. But too many people seem to use it as a crutch to shut down arguments.

Like, "should we control gun-sales" or "should the government give people healthcare?"

It's so easy to ignore context and hide behind the Constitution, saying "well the Constitution says no so forget it."  It's much harder stare the problem in the eye and approach the issue practically. It's a shame, too, that people try and use the Constitution and the Supreme Court as a deterrent from supporting legislation at all. The Supreme Court's job is to solve controversial issues should they arise, it's not supposed to be shutting down the democratic process.  Personally, I feel like court's 'protecting' (aka fossilizing) of the Constitution through Judicial Review is one of the least Constitutionally valid practices our government regularly partakes in.

[7thHanyou]

The catch is, the Constitution is the rule of law in the United States, and if we simply ignore what the text is "trying to say," we subject ourselves to even more relativism than loose constructionism allows.  Essentially, asking what the Constitution originally meant is the only way to properly keep our government in check.

That doesn't mean the Constitution can't be changed.  It has been changed, to great effect.  It just means that we can't ignore it.  Though I do think people ask the wrong questions--what our "founding fathers" said is not nearly as important as what the result of the collective ratification process was, for the original Constitution or for any of its subsequent amendments.  We will never know for sure, but there is more literature than you would expect (state documents, debates, etc.) for determining roughly what was intended.

It seems to me that people who want us "not to be bound" by the Constitution want us to govern by emotion or what feels right at the time (I am not saying this is the case with the original poster or anyone in this thread).  That's disastrous, and that's exactly what we were supposed to avoid.  Unfortunately, we've still afforded the federal government more power than we ever should have, so there are legitimate questions that can be asked about whether the Constitution means anything anymore.  I like to think it does, and that all the power illegitimately exercised by the federal government right now is...well...illegitimate.

If we're not to consider the Constitution, or consider it very loosely, then what exactly should we appeal to?

[pogoowner]

The catch is, the Constitution is the rule of law in the United States, and if we simply ignore what the text is "trying to say," we subject ourselves to even more relativism than loose constructionism allows.  Essentially, asking what the Constitution originally meant is the only way to properly keep our government in check.

That doesn't mean the Constitution can't be changed.  It has been changed, to great effect.  It just means that we can't ignore it.  Though I do think people ask the wrong questions--what our "founding fathers" said is not nearly as important as what the result of the collective ratification process was, for the original Constitution or for any of its subsequent amendments.  We will never know for sure, but there is more literature than you would expect (state documents, debates, etc.) for determining roughly what was intended.

It seems to me that people who want us "not to be bound" by the Constitution want us to govern by emotion or what feels right at the time (I am not saying this is the case with the original poster or anyone in this thread).  That's disastrous, and that's exactly what we were supposed to avoid.  Unfortunately, we've still afforded the federal government more power than we ever should have, so there are legitimate questions that can be asked about whether the Constitution means anything anymore.  I like to think it does, and that all the power illegitimately exercised by the federal government right now is...well...illegitimate.

If we're not to consider the Constitution, or consider it very loosely, then what exactly should we appeal to?

Exactly. If you don't like what the Constitution says, push for an amendment. Otherwise, however, it must be followed.

[7thHanyou]

Exactly. If you don't like what the Constitution says, push for an amendment. Otherwise, however, it must be followed.

What I don't understand is the suggestion that people who believe in adhering closely to the Constitution believe it is unchanging when mechanisms for changing the Constitution are in the document itself.

It's not like courts interpreted slavery away.  There was an amendment process.

[William Wallace]

If we're not to consider the Constitution, or consider it very loosely, then what exactly should we appeal to?

"Social Justice," "equality for all" and a dozen other subjective phrases that have no meaning in the context of this discussion. The whole point is to eliminate the appeal to any foundational document. That way the feds can spend money, constituents can have whatever they want and no one has to make any icky legal arguments.

[7thHanyou]

Standing up for what you believe in is all well and good.  I'm a fan of natural law, and I'm kind of lucky since many of the people responsible for the Constitution were sympathetic to that.

I don't think philosophical arguments are bad at all, but practically speaking, there has to be some documented foundation for every legal system.  A social contract, if you will.  If it's necessary for businesses to function properly, how much more necessary must it be for governments?  You can't just arbitrarily change things on a whim.

And mind you, I actually have some problems with the Constitution.  Eminent domain, for instance.  It's not a flawless document.

Lol @ Social Justice and equality.  So much evil has been done in the name of equality...it's not even funny.

[rumborak]

The question is, is it reasonable to treat the Founding Fathers as semi-gods? There is no doubt that they were exceptionally gifted individuals, but that doesn't mean their wording is akin to the Ten Commandments where every word itself is considered "inspired" and the deep analysis of that wording is the only source of wisdom gain.

rumborak

[Perpetual Change]

If we're not to consider the Constitution, or consider it very loosely, then what exactly should we appeal to?

"Social Justice," "equality for all" and a dozen other subjective phrases that have no meaning in the context of this discussion. The whole point is to eliminate the appeal to any foundational document. That way the feds can spend money, constituents can have whatever they want and no one has to make any icky legal arguments.

Or we could just appeal to the whole democracy thing, and only revert to the Supreme Court when it's actually apparent that something is going wrong. As the founders actually intended-- well, most of them anyway.

[ack44]

[William Wallace]

The question is, is it reasonable to treat the Founding Fathers as semi-gods? There is no doubt that they were exceptionally gifted individuals, but that doesn't mean their wording is akin to the Ten Commandments where every word itself is considered "inspired" and the deep analysis of that wording is the only source of wisdom gain.

rumborak

They're not gods, though some of the conservative talking heads have portrayed them that way. As you said, they were gifted statesmen and students of history. That understanding led them to establish a rather brilliant system of government that functions 200 years after the fact. That's why people continue to push the Constitutionality issue.

Or we could just appeal to the whole democracy thing, and only revert to the Supreme Court when it's actually apparent that something is going wrong. As the founders actually intended-- well, most of them anyway.

There were more people involved in the ratification debates than Alexander Hamilton.

[El Barto]

The question is, is it reasonable to treat the Founding Fathers as semi-gods? There is no doubt that they were exceptionally gifted individuals, but that doesn't mean their wording is akin to the Ten Commandments where every word itself is considered "inspired" and the deep analysis of that wording is the only source of wisdom gain.

rumborak

They're not gods, though some of the conservative talking heads have portrayed them that way. As you said, they were gifted statesmen and students of history. That understanding led them to establish a rather brilliant system of government that functions 200 years after the fact. That's why people continue to push the Constitutionality issue.

But does it really function?  Honestly?

The Constitution allowed for things to get to the dysfunctional point that they are now.  Part of the reason is that the framers couldn't possibly have foreseen everything that was yet to come.  Apathetic populace.  Mass media.  Marbury.  Any number of other factors.

A reliable trait of humanity is that there will always be people who wish to game the system.  Every law is open to interpretation.  The inevitable but necessary parsing of every word, idea or nuance causes evolution of the original product.  Just like so many other things,  it will with time and use become corrupt, cluttered, cumbersome, and convoluted. 

[MetalMike06]

Exactly. If you don't like what the Constitution says, push for an amendment. Otherwise, however, it must be followed.

What I don't understand is the suggestion that people who believe in adhering closely to the Constitution believe it is unchanging when mechanisms for changing the Constitution are in the document itself.

It's not like courts interpreted slavery away.  There was an amendment process.

Sorta reflects my ponderance on this issue. It's like during the prohibition era. When it came time to ban alcohol, at least the government had the decency to go through the amendment process. Did they really need to do this? Because by today's prevailing interpretation, it seems, they didn't.

[Perpetual Change]

There were more people involved in the ratification debates than Alexander Hamilton.

The point is, it seems like whoever is in power just sees the Supreme Court as an addition obstacle or another means to the same end of changing things. I'm not sure what the purpose of the court is really, other than to have some moderating effect over the long-term.

[ReaPsTA]

What I don't understand is the attitude of following the Constitution for the sake of following the Constitution. A country is founded on certain principals, but that doesn't mean you agree with all of them or that you don't want to change the foundation.

Serious question - Are you American?

[rumborak]

What does being American have to do with it? I would think any nationality can come to the realization that any document, no matter how "gravitively" written, is ultimately dependent on the consent of its followers. I think it's more a historical artifact (the US being so young and only having had one form of government) that people here think it is the only proper way to do things.

rumborak

[ReaPsTA]

But does it really function?  Honestly?

The Constitution allowed for things to get to the dysfunctional point that they are now.  Part of the reason is that the framers couldn't possibly have foreseen everything that was yet to come.  Apathetic populace.  Mass media.  Marbury.  Any number of other factors.

A reliable trait of humanity is that there will always be people who wish to game the system.  Every law is open to interpretation.  The inevitable but necessary parsing of every word, idea or nuance causes evolution of the original product.  Just like so many other things,  it will with time and use become corrupt, cluttered, cumbersome, and convoluted.  

Three thoughts:

1.  From a historical perspective, the constitution is one of the most successful governmental foundations of all time in terms of lastability.

2.  One fault in the constitution is that it was intentionally written in elegant language.  Gouverneur Morris was assigned to the specific job of making the constitution's writing stylistic.  In retrospect, simplistic language would have been better.  If the second amendment simply said "All American citizens have the right to own any firearm," there wouldn't be much debate.

3.  I guess what I don't understand is how the constitution is somehow directly a cause of the faults of our political system.  Anything, no matter how good intentioned or well executed can be flipped into something bad.  I think what you're saying is that it's not designed to evolve.  But in a way, that's its greatest feature.

Look at Britain's comparatively terrible speech laws in comparison to our own, especially the libel laws.  Without the first amendment political speech in this country wouldn't be anywhere near as unrestricted as it is today.  Government interference in business comes from a misinterpretation of the commerce clause, which was supposed to only apply to the specific business of moving goods between states.  I know you hate government spying on people.  If the fourth amendment was actually followed, it wouldn't be a problem.

To me, it seems like the biggest fault in the constitution is that it's too flexible.  When you say freedom of speech shouldn't be restricted, it opens up too many questions about what that is in the first place.  If the first amendment read "No governing body in the United States may regulate any form of speech or expression unless it creates immediate physical danger for another human being or group of human beings," there wouldn't be much to debate.  Probably not the best way to parse the text (if you consent to be in a dangerous situation, does it still count as dangerous?), but hopefully I'm making my point.

What does being American have to do with it? I would think any nationality can come to the realization that any document, no matter how "gravitively" written, is ultimately dependent on the consent of its followers. I think it's more a historical artifact (the US being so young and only having had one form of government) that people here think it is the only proper way to do things.

rumborak

Here's why I ask.  Most of the world seems to look at a country's constitution as a sort of loose set of rules or guideposts to build the country's legal system around.

The American legal system does not work that way.  Every law passed by every governing body in the country is supposed to legally fit with the constitution.  If not, then it's invalid.

What's weird to me is that no one looks at any other set of law this way.  Nobody looks at tax law and figures that since the economy's bad they should have to pay as much in taxes this year.  At least not in terms of what the law means.  So why is the constitution, the master law of the country, somehow less relevant just because it's old?

[rumborak]

What does being American have to do with it? I would think any nationality can come to the realization that any document, no matter how "gravitively" written, is ultimately dependent on the consent of its followers. I think it's more a historical artifact (the US being so young and only having had one form of government) that people here think it is the only proper way to do things.

rumborak

Here's why I ask.  Most of the world seems to look at a country's constitution as a sort of loose set of rules or guideposts to build the country's legal system around.

The American legal system does not work that way.  Every law passed by every governing body in the country is supposed to legally fit with the constitution.  If not, then it's invalid.

Nah, many other countries have it that way too. I can definitely speak for Germany where a law can not be enacted if it violates the constitution. In fact, regularly political parties petition for the "constitution court" to look at new laws whether they're unconstitutional or not.
However, despite the fact that this is all supposed to fit together snugly, every German knows, simply from history, that no matter how nice it sounds, if the public no longer supports it, it is meaningless.
To me, it's really a pyramid, with the constitution being at the base. The higher you go, the less "agreeable" the laws become, the lower you go, the more of the population agree on its validity. That means, supposedly the base of the pyramid should be full of laws that everybody agrees with. If that is however not the case, you have a problem, because once people no longer agree on the most basic principles, there is discord. That's why there are amendments anyway. And for the continuing stability of a nation, one needs to not be mortally afraid of readjusting the base to once again conform to the majority's support. It shouldn't be changed lightly, but if you're waiting too long to reflect the population's change, you will have more and more people not supporting the foundation of law.

What's weird to me is that no one looks at any other set of law this way.  Nobody looks at tax law and figures that since the economy's bad they should have to pay as much in taxes this year.  At least not in terms of what the law means.

Well, at least in Germany a budget can be declared unconstitutional, and it happens regularly in fact, forcing the leading party to go back to their drawing board and redesign the budget.

rumborak

[Super Dude]

I'm not gonna bother reading the rest of the thread, but I will say this: Jeremy Bentham and John Hancock are rolling in their graves with the way the American people treat the Constitution like the Bible.  The latter in fact suggested to Jefferson once that the Constitution ought to be totally redrafted and reframed every 20 years.

[William Wallace]

I'm not gonna bother reading the rest of the thread, but I will say this: Jeremy Bentham and John Hancock are rolling in their graves with the way the American people treat the Constitution like the Bible.

Shit. I wish we were that lucky. Most people know next to nothing about the Constitution, and the legislature acts as if there are no limitations on what they do.

[PlaysLikeMyung]

I'm not gonna bother reading the rest of the thread, but I will say this: Jeremy Bentham and John Hancock are rolling in their graves with the way the American people treat the Constitution like the Bible.  The latter in fact suggested to Jefferson once that the Constitution ought to be totally redrafted and reframed every 20 years.

This could have saved us from a lot of political trouble down the road

[Super Dude]

Yep, and guess who wouldn't have it?

[PlaysLikeMyung]

It's kind of odd though. Jefferson was a strict 'by the Constitution' President (save for the LA Purchase), so having a document that in itself isn't particularly strict is odd.

[Perpetual Change]

I don't have much to add to the thread, but I do believe I'm starting to formulate a hypothesis about the way intellectual people develop their ideas (which I admit may or may not be true):

There is a time in most people's lives where they feel like they can know and prove the answers to the big questions; i.e. whether or not God exists, what should and should not be legal, what is and is not true, etc.

After awhile, people mature and realize that there are no definite answers provided by the Bible, The Constitution, your favorite philosopher, etc. So then people turn to the argument of the text. "Well, I've given up ever being able to prove why X should be legal, but I can tell you what the Constitution says, and then I can point to some nice reasons why it might be worth following."

I feel like that is the trend, anyway.

[Super Dude]

@ PLM: That was actually what I meant, Jefferson was adamantly opposed to that idea.

[PlaysLikeMyung]

@ PLM: That was actually what I meant, Jefferson was adamantly opposed to that idea.

Oh I realize that. If he were alive today he'd probably shit his pants lol

[7StringedBeast]

I'm not gonna bother reading the rest of the thread, but I will say this: Jeremy Bentham and John Hancock are rolling in their graves with the way the American people treat the Constitution like the Bible.  The latter in fact suggested to Jefferson once that the Constitution ought to be totally redrafted and reframed every 20 years.

This could have saved us from a lot of political trouble down the road

I disagree.  Could you imagine how insane this country would go if they tried to re-work the constitution now?  It'd be bedlem.  We are far too polarized at this time in our history to do anything the "correct" way.  Each side would want their own way whether its the best for the country or not.  It'd be a total disaster.

[PlaysLikeMyung]

I'm not gonna bother reading the rest of the thread, but I will say this: Jeremy Bentham and John Hancock are rolling in their graves with the way the American people treat the Constitution like the Bible.  The latter in fact suggested to Jefferson once that the Constitution ought to be totally redrafted and reframed every 20 years.

This could have saved us from a lot of political trouble down the road

I disagree.  Could you imagine how insane this country would go if they tried to re-work the constitution now?  It'd be bedlem.  We are far too polarized at this time in our history to do anything the "correct" way.  Each side would want their own way whether its the best for the country or not.  It'd be a total disaster.

And that's different from what's happening now?

The difference with the constitution is that you need a supermajority of the states to ratify it. No simple 51% vote. The compromising would be extensive, and I believe force the delegates to make better decisions

[7StringedBeast]

At least now we have a document preventing laws going into action and protecting our rights.  Get rid of it, and it'd be chaos.  It's very different what is happening now.  you tell the current government to re-write the constitution and the people will lose any power we have left.  You instantly lose checks and balances.

[Super Dude]

I don't think that's necessarily true, as long as the people are included in that process. And my point wasn't to propose we change to such a system, and in fact I believe it's too late for that now; the Constitution has reached a point of sanctity that it cannot be touched. For Hancock's proposition to have worked, that would have to have been adopted during the formation of the republic, when that possibility was raised.

[ReaPsTA]

The constitution specifically describes how it can be amended.  Is it purposefully difficult to change so spur of the moment ideas can't influence it?  Yes.  But except for a couple sections, it's not designed to be written in stone.  

In fact, excepting the Bill of Rights, the constitution was amended on average once every 11 years between 1795 and 1992.  I'm not really sure why we've stopped for almost 20 years now.  If people are really so bothered by constitutional limitations, change the thing.

[William Wallace]

I don't have much to add to the thread, but I do believe I'm starting to formulate a hypothesis about the way intellectual people develop their ideas (which I admit may or may not be true):

There is a time in most people's lives where they feel like they can know and prove the answers to the big questions; i.e. whether or not God exists, what should and should not be legal, what is and is not true, etc.

After awhile, people mature and realize that there are no definite answers provided by the Bible, The Constitution, your favorite philosopher, etc. So then people turn to the argument of the text. "Well, I've given up ever being able to prove why X should be legal, but I can tell you what the Constitution says, and then I can point to some nice reasons why it might be worth following."

I feel like that is the trend, anyway.

I think you're wrong. Here's why: in the context of a legal debate, the issue is what the law says, not whether or not there are good reasons for the law. Are there valid reasons for restricting the actions of government with a written constitution? Yeah. But that's irrelevant when arguing over what specific clauses of the constitution mean.

[Super Dude]

In conclusion, we need to rewrite that sucker.  I know it's probably a bad example, but look at Brazil, they've done it at least five times and they're being considered now as an emerging power (i.e. to replace us).