If you’re going to portray my statement in bad faith, then I’m not going to discuss it with you.
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- Thread starter snake020
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The original Constitution was drafted, negotiated, and voted on in a convention composed of delegates from different states with different points of view and then ratified by the members of thirteen state legislatures and conventions.
Mirage, whose intent are we to focus on: the drafters of the provision at issue, others who participated in the debate at the convention or in the Congress, or members of the ratifying legislatures? It should be the ratifiers, no? They're the ones that approved it. Did they all have the same understanding?
Why are the Federalist Papers cited so often? They're not a part of the Constitution, but they describe a lot of the thinking behind it. Why did the framers think they were necessary?
One of the key jobs of SCOTUS is to resolve differing interpretations of the Constitution by lower courts, in order to ensure consistency of interpretation. Why is that role needed, when it is all so clear what the Constitution means, and how it gets applied to the internet and genomics, along with all the old stuff?
Again, that is incorrect, in that the Constitution did not give the Supreme Court those powers. The Court itself establish the principle of judicial review in Marbury. It is important to remember that the case was heard in 1803. Most of the framers were still alive. As judicial review was already practiced by some state courts, giving that authority to the US Supreme Court was roundly debated at the Convention. Judicial review for SOCTUS was specifically voted down. It was on the agenda. So it matters not what the losing delegates thought. What matters is what is in the Constitution. If a majority of the framers wanted judicial review for the federal courts, they would have written it down. They had a chance. They knew the arguments.
Chief Justice himself, John Marshall acknowledged in the Marbury opinion that SOTUS only had authority "affecting Ambassadors, other public Ministers and Consuls” or in cases “in which a State shall be Party” and that the delegates could have empowered SOCTUS with judicial review. Then, in what was the first of Justice Blackmun's "penumbras", Marshall declared a new authority for the Courts. He wrote, “It is emphatically the duty of the Judicial Department, to say what the law is.” It mattered not that living delegates that signed the Constitution said that was not their intent.
History aside, as I said before, hard to image the Courts without judicial review. I think maybe it would have worked out fine. But the real point is, it was not for the Supreme Court to seize the authority. The people could have given it to them if it was deemed necessary.
So what would have happened without it? We’d potentially have too many interpretations of the Constitution to count, which makes my point about its vagueness.
Everyone realized this interpretation was good and necessary. They evolved.
Serious question… why do we defer to (what we interpret as) “Framer’s intent?” Sure, these guys came cobbled together a set of principles that could guide a new system of government, doing a lot of borrowing from political philosophies of the time, but do we tend to put them on a pedestal without subjecting their work to criticism? As has been stated in this thread, it’s not like there was unanimity among the founders… far from it. We tend to treat their work as the Gospel, handed down from heaven. That’s probably not a healthy mindset to adopt.
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The answer regarding whose writings we should pay attention to to gain insight into the intent behind the words of the constitution is not one or the other.. it's both the ratifiers and the framers.
Here's an example. The 2nd amendment. If you read any writings from the day, or the amendment itself, it's crystal clear the intent of all involved is for the people to have the military ability to overthrow their own government if they feel it's come to that. So should we allow people to have tanks? Well, that's up to the people and their representatives to decide, not random unelected judges who think that's a bad idea so they interpret it as not a constitutional issue. Like it or not, the constitution is pretty clear that people should be able to form militias with the weaponry of the day. If we decide people shouldn't have tanks (which I think most all of us can agree on), our representatives should pass an amendment that changes the constitution in that way.
This example also highlights the framers obsession with making sure the power stays with the people, which is the exact reason why judges shouldn't be able to interpret away inconvenient parts of the legal contract between our govt and it's people. Doing so is taking power from the people and giving it to unelected officials who will take all they can in their natural desire (which we all share) to shape the country the way they see fit. The problem is that that is not their job. Their job is to interpret the contract as it was written, not the way they wish it had been written.
If you read the writings from the day, or the amendment itself, it is crystal clear the intent was for their to be no standing army, that the common defense was to be provided by a well-trained militia of the people. Standing armies were considered the greatest danger to liberty.
The job of the militia as described in The Constitution is…”To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
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You're at least partially right, but instead of debating that I'll just point out that you're completely missing my point. My point is that the constitution is a legal contract between the govt and the people. Contracts can't be changed unless both parties agree. Your assertion that the constitution says we shouldn't have a standing army still proves my point that if our govt wants to then have a standing army then it must amend the constitution to accomplish that. It can't just decide to ignore the contract, yet that's what it's done in so many cases, often using excuses like that it's a living document to justify ignoring what it says and what it's intent has always been.
The Constitution does not prohibit a standing army. It simply says no appropriation of moneys shall be provided for more than two years. True, in the day the preference was for no standing army and that is how the young nation proceeded for some time. But there no prohibition. Again, simple reading of the document.
I'm not making that assertion. I agree with @wink on that concern for standing armies is the underlying motivation for our painful POM cycle, which probably didn't anticipate the F35 development program. Of course now we have an absolutely humongous standing army too.
The "no standing army" thing got burned down with the White House during the War of 1812, yet the Constitution still contains lots of words that are there because of that understanding and motivation. We've managed to go from considering militias as the hopefully primary mechanism for defending our government, into now some people think they are reserves for overthrowing our government.
I agree with you 100%
But the problem is agreeing on what the contract actually says.
Heck, even with detailed, narrowly focused contracts, there are endless court cases. Friend of mine's neighbor rents his house out all the time, to the annoyance of everyone. So my friend went to court, and its gone up 2 levels of appeals as to whether it is a commercial use of property or not.
Maybe it will get to the SCOTUS?
Are there vague things in the constitution, sure.. see the 9th amendment. But there are a great many clear things that people (and justices) pretend are vague as a way of granting themselves unconstitutional power to further their political/policy objectives.
There are also cases of conflicting or competing rights. Check out constitutional balancing. A lot of wiggle room there.
Here is the bottom line. We are a democracy. A representative republic. Parsing the Constitution and the Declaration of Independence aside, it is clear from our history that the source of all power is ultimately the people, via the vote and elected representatives. No one debates that. We used to teach that in public schools. So why in hell would anyone want 9 unelected lifetime appointed elites make some of the most important decisions in our society? Of course, the answer is Americans are OK with it as long as the decision goes their way. Nothing democratic about a single federal judge, panel pf appeals court judges or even SCOTUS deciding anything for all of society. The federal courts role in judicial review will not go away today. There is a place for it. But it should be narrowed a great deal. More disputes need to be dismissed at the lowest level of the courts. Judges hate to dismiss cases. No balls. Afraid to be overturned. Unwilling to disappoint either party. Appeals courts need to show greater deference to the legislatures. Anything a Circuit Court panel of 3 or more judges can decide can also be decided by dozens of legislators in open debate and answerable to voters.