The Constitution: "At least as easy to understand as a cell phone contract—and vastly more important."

Damon W. Root | October 20, 2008

Today's Wall Street Journal features an excerpt from a speech Justice Clarence Thomas gave last week at the Manhattan Institute on the topic of "How to Read the Constitution." This passage gets right down to business:

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

It's notable to see Thomas referring to "original intent," rather than "originalism" or "textualism," which are the preferred methodologies on the right. Justice Antonin Scalia, for one, dropped the earlier locution, arguing that since the minds of the framers were unknown to us, we certainly couldn't know what they intended. Originalists, on the other hand, argue that we should look to the written text, particularly its established public meaning at the time of constitutional ratification. I'm assuming Thomas meant something more along those lines. If that's the case, I'd agree. We should look at the text, the larger constitutional context, the relevant history, the author or authors' statements of purpose, and the statements of support from those who supported and ratified the document.

But none of that means that the debate will necessarily be over. What about unenumerated rights? Do we have a right to privacy? What about a right to send our kids to private school? Former federal appeals court Judge Robert Bork, for instance, maintains that if the Constitution does not specifically mention a right, it doesn't protect it. Scalia has argued along the same lines. But then there's the 9th Amendment, which states that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparate others retained by the people." Bork, in his failed Supreme Court confirmation hearings, compared the 9th Amendment to an "inkblot." Randy Barnett, however, argues that the amendment "means what it says;" namely, it protects unwritten rights.

In any case, it's an interesting speech and well worth perusing.

Comments

|10.20.08 @ 6:01PM|#

It is particularly relevant to look at the ratification debates of the Constitution to understand what the representatives in the various states who signed it understood. That's even more important than what the representatives in the Philadelphia Convention meant.

the innominate one|10.20.08 @ 6:12PM|#

Thomas does say originalism at the end of the blockquote, Damon.

|10.20.08 @ 6:32PM|#

I'm not highly educated on this issue,l but to me, it seems that a "Living Constitution" is only differing from an original intent on a means of scale. As you mentioned, there is the 9th amendment. But additionally, what of issues that the framers couldn't have imagined? Look at the burgeoning world of cyber-related law. As technology increases more, judges will be forced to 'interpret' what they think the framers' original intent would be if presented this new information.

|10.20.08 @ 6:48PM|#

Thomas is arguably the best justice on SCOTUS -- arguably a low bar to clear, but still ...

|10.20.08 @ 6:51PM|#

I'm not an expert on this either, but it seems to me that when one looks to the constitution to find out "what rights we have", unenumerated or otherwise, the battle is already lost.

The Constitution isn't about what rights we have, it's about specific restrictions on the power of government. Unwritten rights are a part of that, but the important thing is the limitation of powers, not the preservation of rights.

Zubon|10.20.08 @ 6:52PM|#

I think "intent" was sloppy phrasing, given his record. There are much better places to be in originalism than "original intent."

The Bearded Hobbit|10.20.08 @ 7:08PM|#

.. so, did Bork mean it as some sort of Rorschach test to test one's theories of government or as some coffee stain that got smudged at the end?? .. I suspect the latter .. (I was around during his confirmation but payed no attention) ..

.. I guess it is my staunch belief in the ninth (and tenth) that causes my continuous disagreement with the way the country is run ..

.. "Originalist" Hobbit

SIV|10.20.08 @ 7:11PM|#

Thomas is arguably the best justice on SCOTUS

From a libertarian perspective there is no argument.

No Name Guy|10.20.08 @ 7:16PM|#

LnGrrrR

"Look at the burgeoning world of cyber-related law. As technology increases more, judges will be forced to 'interpret' what they think the framers' original intent would be if presented this new information."

I disagree - speech is speech is speech, no matter the form, be it by voice on a soapbox in the town square, printed in a newspaper, pamphlet or book (as the Framers would have done) or here in more modern times being broadcast by radio, TV or here on the interweb thingie.

What matters is the PRINCIPAL, not the METHOD or mode of delivery, in this particular case.

The trouble with the living document view of the Constitution is that its difficult for a reasonable person to understand what is and is not allowed until it's litigated (an expensive, time consuming process with uncertain results).

Well written law (enforced by a framers intent view point judiciary) allows all parties to know, ahead of time, with reasonable certanity, what they can and can not do. (Decent) People and the (decent) elements of government would therefore conform their behavior and make their decisions on what to do based on that fixed (unless and until expicitly ammended) set of norms.

Oh yeah - what Matt said. The Constituation is pretty plain in that the Federal Government should have only limited and enumerated powers. What's so flippin' hard to understand about this simple fact?

|10.20.08 @ 7:20PM|#

The original understanding of the Constitution didn't consider flogging to be cruel or unusual.

The original understanding of the 14th amendment didn't include the application of the individual rights in the Bill of Rights to state governments.

Screw that.

the innominate one|10.20.08 @ 7:27PM|#

Thomas is arguably the best justice on SCOTUS ...

which is very, very sad

|10.20.08 @ 7:32PM|#

How about this: I believe the people who wrote and ratified the Constitution wanted Americans to define the terms found therein using contemporary standards.

There is precisely as much support for this notion in the text of the Constitution as there is for the notion that we should understand terms like "cruel" and "unreasonable" according to our guesstimates of what Thomas Jefferson would have thought.

|10.20.08 @ 7:38PM|#

No Name Guy,

Well, I was referring more to other technological questions. Such as, should internet providers have the right to block certain types of speech if they wish? What of digital property (ie. if I pay for some digital content, is it "mine"? Is it a license? What if that digital content is lost due to a server crash?) What about those who war drive to find an unsecure connection, then use that for nefarious means?

I think that law will have some interesting cases in the next few years.

|10.20.08 @ 7:40PM|#

How about this: I believe the people who wrote and ratified the Constitution wanted Americans to define the terms found therein using contemporary standards.

Self-centered, aren't we?

What makes the present special? Just because you're alive and walking around during it, you think that it has some special precedence?

The Constitution isn't about the opinions of the (powerful) people of today. It's a contract from a different time. That time was not necessarily wiser, but it was formative. The Constitution got us here, you did not.

MJ|10.20.08 @ 7:41PM|#

"The Constituation is pretty plain in that the Federal Government should have only limited and enumerated powers. What's so flippin' hard to understand about this simple fact?"

It's not terribly hard to understand, but for certain people with the words "Judge", "Justice", "Representative", "Senator", "Secretary of...", and "President" in front of their names, it is very hard to accept.

|10.20.08 @ 8:19PM|#

"I believe the people who wrote and ratified the Constitution wanted Americans to define the terms found therein using contemporary standards."


First, there is no consensus on what contemparary standards are. Usually that just means whatever a judge thinks it is. Further, there is not gaurentee that the contemporary standards will always favor greater rights. What if the standard becomes to restrict rights? Indeed, that is what has happened with regard to political speech. With the rise of campaign finance laws, we are much less free than we once were.

In the end, contemporary standards has to be one of two things. It is either the will of the people which since it is best expressed through our elected government, just a rubber stamp for what the government wants to do or it is what our elites think it is which is just another way of shoving fashionable ideology down people's throats.

In the end, I would rather have a flawed set of rights that was immune to contemprorary standards than I would a set of rights that amounted to nothing more than whatever the mob or our robed overlords decided it did.

|10.20.08 @ 8:21PM|#

matt,

The present is only special in the present. It is meaningful to us, because it is ours.

In 100 years, our descendants will look back at our archaic foolishness just as we look back on that our ancestors, and they will define "cruel" and "unreasonable" using the standards of that time.

Nothing self-centered about my idea at all. It's just our turn to carry the baton.

|10.20.08 @ 8:25PM|#

John,

First, there is no consensus on what contemparary standards are. Nor is there any consensus about what the standards of 1789 are. Sedition Acts - yes or no?

Further, there is not gaurentee that the contemporary standards will always favor greater rights. No. Nor is the achievement of ever-greater rights necessarily the correct interpretation. You're arguing here that the correct way to interpret the Constitution is the one that gets the result you want.

What if the standard becomes to restrict rights? Indeed, that is what has happened with regard to political speech. No, not really. See Alien and Sedition Acts.

And I'll take live robed overlords over dead ones any day. At least they have clue about our lives and standards.

|10.20.08 @ 8:28PM|#

And now I'm going to ask it once again: does anyone want the federal courts to apply the 1793 definition of what is cruel and unusual punishment? Floggings for blasphemy, death for horse theft?

Anyone?

Does anyone want to use the 1868 interpretation of the 14th amendment to determine whether the State of Oregon needs to respect the free speech rights defined in the First Amendment?

Anyone?

C'mon, if you're an originalist, you have to answer yes. You say your originalists, so step up.

|10.20.08 @ 8:32PM|#

"Nor is there any consensus about what the standards of 1789 are. Sedition Acts - yes or no?:


No, but there is some idea about what they meant. Never an exact idea, but if you judge things by the context and believe text means something you can have a standard. No one ever said that the Consitution must be a perfect document that rights all wrongs or stops all bad laws. It is instead a floor of protected rights and limits on the government. If you want more, you can always amend the consititution.

Further, what does it mean to be against the current standard? If an elected government does it and doesn't pay a price at the ballot box, isn't that pretty strong evidence that it is accepted?

Your example of the alien and sedition acts are a good example of why contemprorary standards are a bad idea. By the standards of the day, they were acceptable. People supported them and felt they were necessary. The same goes with the internment of Japanese Americans. It shocks our conscience today, but it didn't then. By contemporary standards those cases were decided correctly. So was Plessy v. Fergason for that matter. Of course, by an objective reading of what the Constitution actually says, they were terrible cases.

Again, we are better off with one set view of what the constitution means as best we can figure than we are by going by contemporary standards. Contemporary standards are often driven by panics and wars and hatred and all sorts of other things that are adverse to freedom.

|10.20.08 @ 8:36PM|#

joe,

The present is ours in some sense, but we don't own it. One day we're going to pass it on to others and then we're going to be judged against those who passed it to us (in the afterlife, history, or both, depending on your perspective).

I don't trust you or your ilk to carry the baton, and I bet you don't trust me either, so let's compromise by leaving the damn thing where it sits.

|10.20.08 @ 8:36PM|#

"And now I'm going to ask it once again: does anyone want the federal courts to apply the 1793 definition of what is cruel and unusual punishment? Floggings for blasphemy, death for horse theft?"


The courts can't proscribe those punishments anymore. The law has been changed. If a state legislature would have to decide that those punishments were correct in order for it to happen. If you feel the floor should be higher, then ammend the Constitution. Further, while we don't flog people anymore, we do lock them in supermax prisons until they go insane now. Our enlightened contemporary standards are not too enlightened. I suspect the SuperMax wouldn't have passed muster in 1789.

|10.20.08 @ 8:38PM|#

I'm going to go out on a limb and say that those punishments were unconstitutional THEN. Proceed, So-crates.

MJ|10.20.08 @ 8:51PM|#

Applying "contemporary standards" is what legislatures, executives and the elections that choose them are for, not courts. The courts are not the proper forum for this, they are not well equipped to process such arguments, nor should they be.

"And I'll take live robed overlords over dead ones any day."

Then you are a fool and knave. If the purpose of the courts is to constrain the other branches then it must be on the basis of a consistant, knowable basic framework. A "living" document theory amkes a hash of that purpose.

|10.20.08 @ 8:53PM|#

John, the point is, several of the actual framers of the Constitution considered the Sedition Acts perfectly consistent with the First Amendment, and several did not. That right there tells you that this "original intent" that is the right interpretation is chimerical.

Never an exact idea, but if you judge things by the context and believe text means something you can have a standard. I've never seen anyone claim that the text of the Constitution means nothing. The matter of interpretation arises when there is not a perfect and irrefutable statement in the Constitution that explicitly covers a certain case.

No one ever said that the Consitution must be a perfect document that rights all wrongs or stops all bad laws. It is instead a floor of protected rights and limits on the government. If you want more, you can always amend the consititution. Yes, but we're not talking about outcomes here. We're talking about how to get to outcomes.

Further, what does it mean to be against the current standard? If an elected government does it and doesn't pay a price at the ballot box, isn't that pretty strong evidence that it is accepted? Good question. Let's take the "cruel and unusual punishment" language. I think there would be overwhelming public support for cruel and unusual punishment for child rapists. If I circulated a petition that explicitly called for "cruel and unusual punishments" for such criminals, I'll bet I could get 100 signatures an hour at any supermarket in America. The standards of the Constitution are not always popular.

Your example of the alien and sedition acts are a good example of why contemprorary standards are a bad idea. By the standards of the day, they were acceptable. And yet that was, arguably, the original intent of the framers. There were many people who actually signed the Constitution and voted to ratify the Bill of Rights who thought the Sedition Acts were constitutional. Hence, my lack of faith in the wisdom of treating our best guess of their opinions back in the pre-locomotive period as the sole proper standard.

|10.20.08 @ 8:54PM|#

matt,

I don't trust the people who thought the Sedition Acts were legal and the flogging of blasphemers constitutional to carry the baton, either. I'd rather not leave it there, thanks anyway.

|10.20.08 @ 8:59PM|#

John,

The courts can't proscribe those punishments anymore. The law has been changed.

In many cases, the law was changed because punishments were deemed unconstitutional.

Marc,

To go out on that limb, you would have to agree that the understanding of the Constitution's language that prevailed when it was written and ratified was not correct. Not much an argument for originalism.

MJ,

Are you saying that legislatures should do their work purely on the basis of contemporary standards, and not defer to the Constitution or any eternal standards at all? That is foolish.

All branches of the government have a duty to do both. That is not the dividing line among them.

|10.20.08 @ 9:22PM|#

Do I have to agree that "the understanding of the Constitution's language that prevailed when it was written and ratified was not correct"? Is the fact that not every law on the books (at the time of ratification) was constitutional, a refutation of originalism?

I'm convinceable, but, as yet, not so convinced. I admit that I know f-all about constitutional law.

|10.20.08 @ 9:32PM|#

I don't trust the people who thought the Sedition Acts were legal and the flogging of blasphemers constitutional to carry the baton, either. I'd rather not leave it there, thanks anyway.

I guess this settles it:

you're nothing but a shill for the era of Bush!

|10.20.08 @ 10:07PM|#

"Former federal appeals court Judge Robert Bork, for instance, maintains that if the Constitution does not specifically mention a right, it doesn't protect it. Scalia has argued along the same lines. But then there's the 9th Amendment, which states that 'the enumeration in the Constitution of certain rights shall not be construed to deny or disparate others retained by the people.'"

And there is also the 10th Amendment, which states -- quite clearly, I might add -- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This leaves open the possibility of a whole universe of "rights" that will never be tested in court because the well-behaved government, never overstepping its bounds, will not come close to infringing them.

Yeah, right, like the government will ever be "well-behaved." So let the legal challenge games begin!

To me the last two items in the Bill of Rights give us a couple of ways to check government power: 1) Determine that a particular thing is a "right retained by the people," which at least brings into question or puts the brakes on -- if not prohibiting entirely -- government action that infringes the right; and 2) Show that there is no direct authority in the Constitution for the Federal government to act. Sometimes, you can make a case that invokes both protections, but either one alone is still pretty good. Too bad we don't make more use of them.

|10.20.08 @ 11:02PM|#

Joe, I'd rather risk being flogged for the few things the Constitution allows the govt to prohibit than risk having my entire family shot in an unconstitutional drug raid.

How about you?

|10.20.08 @ 11:06PM|#

And were the Alien and Sedition Acts considered perfectly constitutional by all until the theory of the Living Constitution was developed and the progressives showed us the errors of our ways, or did arguments against them, based on the actual damn Constitution itself, predate the progressives blessing us peons with their presence?

|10.20.08 @ 11:21PM|#

And isn't the War on Drugs 'constitutional' based only on the living document theory? Isn't the WOD the precedent for all the Bill of Rights exemptions the left (correctly) argues against when done by Bush? Isn't the WOD biased against the poor and disproportionally locking up minorities? Joe, the Alien and Sedition acts were 200 yrs ago. Your living document theory gives a WOD today. No thank you.

Seward|10.20.08 @ 11:25PM|#

joe:

FYI, the Alien and Sedition Acts were highly unpopular in many parts of the country and were part of the reason that Adams lost the election of 1800.

As for what interpretive scheme is best, I suspect that a person's views on that change depending on the context and what they view as the proper role of government. With certainly it can be said that each view has compelling and difficult to counter arguments which it can muster.

MJ|10.21.08 @ 12:00AM|#

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them."- Federalist #78

http://www.constitution.org/fed/federa78.htm

I did not say that legislatures solely base their descisions on contemporary stsandards, I said that the legislature was the appropriate place for comtemporary standards to be considered. The courts are not appropriate.

gmatts|10.21.08 @ 12:17AM|#

"Justice Antonin Scalia, for one, dropped the earlier locution, arguing that since the minds of the framers were unknown to us, we certainly couldn't know what they intended. Originalists, on the other hand, argue that we should look to the written text, particularly its established public meaning at the time of constitutional ratification."

Why is looking at "its established public meaning" ok, but attempting to understand the minds of those that wrote the laws not? How is one knowable and the other not? Both of those options involve attempting to understand meaning to people that are dead. And if that is what is required, it seems to make more sense to examine what the laws meant to those wo actually wrote them, and not just those that happened to live under them.
And if trying to understand the public meaning at the time is the gold-standard, it seems wise to look to what the publics elected officials had to say on the matter.
Further, if the minds of the framers are unknown to us, how is it then possible to understand the minds of the public? Surely the framers, whose mindset we are apparently incapable of ever knowing, left behind not just ideas in terms of actual laws and the Constitution, but they also left reams of papers, letters, correspondents, etc. that give us insight into their mindset.

Paul|10.21.08 @ 1:08AM|#

First Amendment vis. "community standards". Oh wait, that's porn. Now that pesky political speech... that's another thing altogether.

I propose all candidates, and all people and organized groups wishing to discuss politics under terms which would nominally violate McCain/Feingold should henceforth declare said speech as "performance art".

|10.21.08 @ 7:21AM|#

The Constitution isn't about what rights we have, it's about specific restrictions on the power of government.

More to the point, it is the entirety of the legal basis for the federal government. It delegates certain limited powers to the government, and anything not delegated is not the government's prerogative.

-jcr

Abdul|10.21.08 @ 7:49AM|#

Does anyone want to use the 1868 interpretation of the 14th amendment to determine whether the State of Oregon needs to respect the free speech rights defined in the First Amendment?

Anyone?


I think you're wrong on this. The original intent of the 14th ammendment's "privileges and immunities" clause was written by Republicans and certainly meant to apply to the states. The Supreme Court, staffed largely by Confederate sympathizers, ruled in the Slaughterhouse Cases that this clause had only a narrow application. Since that decision, subsequent courts have done an end-run around overturning the Slaughterhouse cases by incorporating constitutional rihts through the "due process" clause.

Justice Thomas has been a proponent of doing away with the "due process" kabuki and restoring the original meaning of the privileges and immunities clause.

As for horse-whipping blasphemers, I'd be all for it if I had a horse.

|10.21.08 @ 7:56AM|#

Joe's position is that if someone claiming (or argued by Joe as claiming) to use your means for interpreting the constitution comes up w/ something you disagree with, you must throw your means out and use his. Joe's means is "if Joe likes it, it's constitutional, if Joe does not, it isn't", which guarantees his means will never come up with something he disagrees with - by definition. Therefore he is immune to what he thinks is the one and only test of whether a means of interpreting the constitution is valid. What he's really doing is making the argument "it's right because I agree with it".

Gilbert Martin|10.21.08 @ 8:15AM|#

" Bork, in his failed Supreme Court confirmation hearings, compared the 9th Amendment to an "inkblot." Randy Barnett, however, argues that the amendment "means what it says;" namely, it protects unwritten rights."

The problem is that leftists want to use that language to create all sorts of affirmative "rights" - like a "right" to healthcare.

There are plenty of unwritten rights but only the negative rights are legitimate ones.

Unlike negative rights, affirmative rights can only be exercised via a government power to force it.

Since the 10th Amendment confines the federal government to ennumerated powers, the 9th cannot contain any affirmative "rights" because there is no language elsewhere in the Constitution delegating any power to the federal government to enforce any such right.

|10.21.08 @ 9:09AM|#

I can NOT believe I am the first to point this out:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or *disparage* others retained by the people."

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

|10.21.08 @ 9:51AM|#

Marc,

If you are saying that the understanding of the Constitution that prevailed when the Sedition Acts were in effect and found to be Constitutional is incorrect, then you are saying that, at least on the issue of free speech, the orginal understanding was not the right one, or at least, not he sole right one.

jsh,

Sadly, the drug raids we read about are almost always carried out with a properly-obtained warrant. BTW, your yammering about how much you hate progressives is a really, really, really, really obvious effort to change the subject. This is a thread about originalism. I guess it's too hard to try to defend that position, huh?

And isn't the War on Drugs 'constitutional' based only on the living document theory? No. You seem to have taken the phrase "living document theory" and applied to mean "everything that isn't my own position." No wonder you're so confused.

Seward, I'm actually familiar with the history of the Sedition Acts, FYI. And while I think it's an important point, one too often disparaged around these parts, but democracy and the popular will can also function as a check on tyranny, that doesn't really go to the question at hand, either.

|10.21.08 @ 9:53AM|#

I made an actual argument, jsh. Every other person who responded to it, except you, was able to offer a reasoned criticism based on principles and ideas.

Except you. You just whined that I'm a progressive, and a terrible person, and failed utterly to address any of the substantive points I raised about originalism.

Everyone else did. Except you.

Epic Fail.

Zubon|10.21.08 @ 10:33AM|#

Original meaning versus original intent:
Meaning is easier to ascertain and more accurately reflects what the populace thought it was adopting. Intent suggests looking at what the framers meant to do, which may be contradictory given their multiplicity and about which they may have lied to get the text passed. See, for example, most laws passed in the last 200 years. Meaning suggests looking at the text as a contract, so what a reasonable person would have understood he was agreeing to when he signed it. This should be relatively constant for all signers, regardless of the intent of the person who wrote the contract. This does not rule out unintended consequences, and it does require that the terms have generally accepted meanings. It also kills any attempts at a living document: the contract you signed is fixed in time, not to be re-defined later as something you would not have signed at the time.

Restoring the Lost Constitution by Randy Barnett has a good explanation of the two approaches early on, with the paragraph above being an off-hand approximation. Unfortunately, the early cases he presents (notably the first Bank of the US) seem to go against his main contention. As has been said in this thread, given the laws that folks thought constitutional at the time, the Constitution is probably a less libertarian document than many originalists hope. (The same interpretation of the evidence seems to gut original intent, since James Madison lost early arguments about what was allowed under the Constitution.)

|10.21.08 @ 10:59AM|#

I don't really understand the big controversy with the 9th Amendment. Wasn't the whole point of that the fact that there were a lot of pro-liberty people who were uncomfortable with the Bill of Rights because they saw it unnecessary? Their position was that of course the Feds can't infringe speech or assembly because nothing in the regular Constitution authorized it. Since the Bill of Rights was pointless, the fear was that others might use the existence of this pointless list to turn the Constitution on its head. If a "right" isn't protected in the Bill of Rights, then the Government has the right to meddle in it. The 9th Amendment was intended to nip that sort of thinking in the bud. So Bork is right. It is just a meaningless ink blot. Just like the Bill of Rights themselves. If the Constitution doesn't authorize government to do something, it can't do it.

The orignalist vs living constitution debate is uninteresting to me. Originalism is an attempt by judges to faithfully do their job. A living Constitution makes the Judicial Branch redundant. If the Constitution means whatever you want it to mean, you aren't a judge anymore. You are a House of Lords- an unelected super minority that has veto power over the Congress and is guided by nothing more than their own particular prejudices. I'm not saying that is worse or better. I personally don't believe in Democracy. But I find the hypocrisy of calling it something it isn't offensive.

bubba|10.21.08 @ 11:34AM|#

shall not be construed to deny or disparate others retained by the people

I would think this implies that such rights would have to be based on common law, history or legistlation. In other words, we may very well have a "right to privacy" but it's not in the Constitution.

Old Bull Lee|10.21.08 @ 11:50AM|#

Bubba and others are correct. The Constitution written to say the government can do this, this, and this. They are denied all other powers BY DEFAULT.

As for the Bill of Rights, the language is pretty clear that the listed Rights are rights the people already have BY DEFAULT, and the Amendments are reminders that the government can't infringe on them.

A lot of people seem to have it backwards, i.e. they think the Bill of Rights are a list of specific things the people are allowed.

Neu Mejican|10.21.08 @ 12:26PM|#

Nice discussion.

My 2 cents.

Textualism is doomed to fail because text always under-determines meaning. In all cases, without exception.

There is not a stable meaning in the text to find. Meaning is created actively by a process of interpretation. That process will always be context bound, and therefore of the time at which it occurs.

gmatts|10.21.08 @ 2:21PM|#

"Meaning is easier to ascertain and more accurately reflects what the populace thought it was adopting."

The populace didn't really adopt anything. They had people do so in their stead. And because of that it seems to make more sense to try and determine what those people that actually did the writing of, debating of and ratification thought of the document in question.
What is the process and standard for trying to accurately determine what the populace's thoughts were on these issues? How is it even knowable?


"Meaning suggests looking at the text as a contract, so what a reasonable person would have understood he was agreeing to when he signed it. This should be relatively constant for all signers, regardless of the intent of the person who wrote the contract."

But the people that wrote the contract and signed it are essentially the same people.
The "populace" in this case is actually far more removed from the legislative process than what normally occurs when 2 parties write and agree to a contract.

Zubon|10.21.08 @ 2:33PM|#

"Populace" was a poor phrasing; grant. "[T]houghts...on these issues" would be intent, not meaning; thank you for agreeing. 13 colonies, 13 ratifications: these were not the same people as the ones who wrote it. There was some overlap. So you had one group of people who wrote it and many larger groups of people who ratified it. So those are your parties to the contract, and the writers are not in a privleged position. You saw far more disputes between Federalists and Anti-Federalists about consequences than meaning anyway.

gmatts|10.21.08 @ 3:08PM|#

"So those are your parties to the contract, and the writers are not in a privleged position."

But the language of the contract originated with those that wrote the contract - i.e. the framers, so they were kinda in a privileged position. Those that ratified it merely had a "yes" or "no" decision on the matter. They did not have as deep an attachment to the writing, and therefore the meaning, behind each specific provision of the document. So you have the decision to try and understand what was meant by the contract coming down to those that merely said "yes" to the contract and those that actually spent the time writing and debating the final language in the contract. And as a consequence of one of these groups - the framers - being more involved in the process, we have more examples of their opinion on what was being agreed to in the final language and, more importantly, why it was written the way it was.