Justice Thomas on interpreting the Constitution
Excerpts from his Wriston Lecture:
"As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. ... Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .
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."
Well put. Makes me again wish that he'd ask questions during oral argument. He has a good voice, a sharp mind, and a way with words.
I find it encouraging that the Court is taking interpretative methodology seriously. Textualism (the words are the key, some some unwritten intent) vs. original intent (of the Framers who wrote) vs. original public understanding (of Americans at large who ratified) vs. pragmatism (figure out what the Framers intended to design and construe so as to accomplish that end... which tends to morph into figure out how I would have designed it and so construe it). At least there's serious discussion. Until about a decade ago, courts just, bluntly, made this ___ up as they went along, throwing in a few quotes from the Framers as window dressing.
I, too, am glad to hear this important aspect is being addressed. Now if it will trickle down to the children of today who seem to think anything they believe to be "unfair" is "unconstitutional".
Posted by: Greg at October 23, 2008 02:54 PM
The two dissents in Heller are good examples of just "making it up" in order to achieve the result you want (for contemporary policy reasons).
Posted by: 30yearProf at October 23, 2008 04:48 PM
The #1 issue is that the judges on the courts do not understand fundamental law theory or in my words the relationship of Creator to created. The Courts do not have and cannot have the authority to "interpret" because the courts are the child/the created/the subordinate of the Constitution.
There is SO little that is ambiguous in the Constitution that interpretation is truly unnecessary. And if there are ambiguities, the only authorized interpreters are We the People because We the People are the Creators of and therefore the superior of the Constitution as well as the superior of the courts/congress/and the President.
I understand that many want to extend the powers delegated/enumerated through implication but Article I, section 8 proves explicitly that there were no implicit powers except powers claimed by those who would usurp authority.
I give you the power to coin money. Would the Framers have believed that there were implicit powers then the power to coin money would have implicitly allowed for those coining the money to set the value thereof. However, a quick look at the same clause in which the power to coin money is conferred one finds that the power to set the value thereof is separately conferred proving that there were/are no implicit authorities hidden between the sentences. Many, many other such examples appear in the Constitution IF one reads the entire document instead of trying to take a word here or there out of context because one has a particular agenda.
And if the above example is not enough, note that the power to spend for the common Defense did not confer the power to have an army or navy or to call forth the militia or to declare war. I can go on and on but the evidence is in plain sight.
Even the power to declare war did not implicitly grant Congress the power to raise armies since the Framers saw the necessity of delegated BOTH powers. And there are more examples if one read the entirety.
All too often the predilections of the judges rather than honor and integrity rule the decisions. Reading the many SC decisions is a course in how to twist and squeeze out one's predilections instead of holding honestly and honorably to what is stated simply and directly.
The judges need to stick to a yes/no decision and leave the commentary behind. Cite the specific constitution clause(s) and move on. Don't sqeeze and twist the document until it screams for relief from the machinations being used to reformulate society.
These folks need a taste of just how UNimportant each of us is in the in big picture. As a genealogist, I've seen first hand how little is actually known about the majority of ancestors. Very, very few people ever reach any level where they are memorable over the centuries. Usually, one disappears after the 2nd or 3rd generation. One's life is often summed up in 15 minutes and everyone moves on. IMO, judges are all trying to leave their mark on society, oblivious to reality. I see the same among my university peers (prima donnas). Me, I'm nobody of consequence.
Posted by: fwb at October 23, 2008 04:56 PM
The utter lack of Constitutional knowledg by the commenters is astounding. To say some of those things takes willful ignorance to a new level. I love that since electronic bugs didn't exist in the "horse and buggy" days that the Constitution has no bearing and must be interpreted. Hmm... I think the 4th is pretty clear. The Internet and the 1st... hmmm... free speech with a different medium but it is still speech and still transmitted through a medium. Does it matter whether it is air or electons (or photons!)
A prime reason we are where we are today is the sorry state of education among voters.
Posted by: Deavis at October 23, 2008 05:13 PM
You must be an educated educator as there is little chance you are a product of the system itself.
Oh, and just in case you weren't aware you will NEVER be a judge.
Posted by: Tom at October 23, 2008 10:56 PM
"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
- Thomas Jefferson, letter to William Johnson, June 12, 1823
Posted by: Bill at October 24, 2008 08:33 AM
If I were a judge, I'd probably be more in the "original public understanding" mold, with a dash of pragmatism when it comes to dealing with existing precedent that's drifted far from that meaning. Obviously things like the commerce clause have lost all of their original public understanding by this point, but I would have to admit that I don't think we'll ever get back to that. Lopez, I think, was a good attempt to go in the right direction, but it's a shame the lower courts ignored it, and the Supreme Court backed off. At this point, I'd be happy just to get rid of the "herpes theory" of the commerce clause, where anything that ever traveled in interstate commerce is forever subject to federal jurisdiction. I thought Lopez was supposed to do that, but it doesn't seem anyone on the bench in the federal judiciary agrees.
Posted by: Sebastian at October 24, 2008 08:35 AM
"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."
- Thomas Jefferson to W, Nicholas, 1803.
"The true key for the construction of everything doubtful in a law, is the intention of the law givers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances, provided they do not contradict the express words of the law."
- Thomas Jefferson to A. Gallatin, 1808.
"I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless."
- Thomas Jefferson to W. Nicholas, 1803.
I don't think anyone was so good at so succinctly stating the principle as Jefferson.
Hamilton, of course, was of a different view, being a proponent of robust use of the "necessary and proper" clause to do - whatever...
Posted by: Bill at October 24, 2008 08:48 AM
Thank you and although i've considered obtaining a DJSc or such, I don't want to be or need to be a judge. The Big Guy will handle that for me. I just hope God has a TiVo so we can watch his judgment of these judges.
In those immortal words of Qui-Gon Jinn, "There's always a bigger fish!"
Posted by: FWB at October 24, 2008 09:37 AM