Memorial Day weekend bled over into today. I finally got through cleaning up and am exhausted. While I plan on addressing the other points raised in post #80 in the next few days, I wanted to say something about the idea raised in post #80 of constitutional interpretation being subjective.
While it is certainly true that there is an element of subjectivity in constitutional interpretation (it is rooted in a "soft science" after all), the interpretation of the constitution is not inherently "subjective". If it were, then the rule of law would be meaningless as the politicians and would-be tyrants who's power is restricted by the Constitution could simply "re-interpret" it to allow for whatever they want.
The rationale from Chief Justice John Marshall's brilliant opinion from the case of
Marbury v. Madison (1803) demonstrates this:
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction...
If the Constitution can simply be "reinterpreted" to fit whatever agenda politicians want it to, then it ceases to be the supreme law of the land and we become a nation ruled by
man, not by
law.
It can never be said often enough; the rule of law is the only thing that stands between a free society and tyranny.
The approach of certain schools of thought in interpreting the Constitution (specifically those that view the Constitution as a "living document") certainly inject enough subjectivity to effectively circumvent the rule of law, and there is no question that those schools of thought have dominated the SCOTUS for the majority of the 20th century, and still dominate many of the lower courts to this day (9th Circuit). But, again, that only means that
one school of thought rejects any notion of objectivity in constitutional interpretation to instead be able to legislate from the bench.
Chief Justice Marshall gave what can be viewed as the litmus test for
objective Constitutional interpretation in the 1819 case of
McCulloch v. Maryland when he said of legislation:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
The school of thought generally known as
originalism uses that
objective standard of the "letter and the spirit" of the constitution to interpret the constitution.
On the surface, that standard can be hard to determine. The constitution was written 1787; over 200 years ago. However, there are a large number of means from which to determine what the understanding of the constitution was at the time of it's creation.
David F. Forte shows how the original meaning of the constitution is determined in his essay titled "
The Originalist Perspective":
How does one go about ascertaining the original meaning of the Constitution? All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its elections effect, originalist researchers variously look to the following:
* The evident meaning of the words.
* The meaning according to the lexicon of the times.
* The meaning in context with other sections of the Constitution.
* The meaning according to the words by the Framer suggesting the language.
* The elucidation of the meaning by debate within the Constitutional Convention. The historical provenance of the words, particularly their elections history.
* The words in the context of the contemporaneous social, economic, and political events.
* The words in the context of the revolutionary struggle.
* The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
* Historical, religious, and philosophical authority put forward by the Framers.
* The commentary in the ratification debates.
* The commentary by contemporaneous interpreters, such as Publius in The Federalist.
* The subsequent historical practice by the Founding generation to exemplify the understood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
* Early judicial interpretations.
* Evidence of long-standing traditions that demonstrate the peoples understanding of the words.
There is still plenty subjectivity (for instance; should the understanding of those who
created the constitution take precedent, or should the understanding of those who ratified it take precedence), but it is greatly reduced (effectively to the margins of the issue) and the core of the interpretation method is objective.
