Yeeeeeeeeeeeeeee HAWWWWWWWWW!

Texas Pete and his kin folk understand the Constitution. And even if they don't, they THINK they understand it AND they can easily parrot the criticisms of the Courts that he hears on Fox (aka Fake) News.

So why can't we vote for W again in 2008?

[Self Insured wrote the following post at 06-25-2007 9:47 AM:

Yeeeeeeeeeeeeeee HAWWWWWWWWW!

Texas Pete and his kin folk understand the Constitution. And even if they don't, they THINK they understand it AND they can easily parrot the criticisms of the Courts that he hears on Fox (aka Fake) News.

So why can't we vote for W again in 2008?]

Oh wow, this was an enlightening debate tactic. When you can't refute your opponent's point, just start lobbing insults.

You know, who needs to interpret anything in the Constitution? The 10th Amendment is very clear when it states the following:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."

Or did I miss all the discussions about a federal bank for the last 200 years?

If we are to interpret the Constitution literally, then black people and women have no rights. It is a living document, it doesn't cover every possible legal issue (how could it possibly, since it was written over 200 years ago), and it is ripe for misinterpretation....and you "literalists" are just going to have to learn to deal with those facts. I won't argue the point that it might be good to have a Constitutional historian or two on the bench, but judges need to know LAW, and by and large, the best folks to have in a position to interpret LAWS are in fact lawyers.

kygirl93:

If we are to interpret the Constitution literally, then black people and women have no rights. It is a living document, it doesn't cover every possible legal issue (how could it possibly, since it was written over 200 years ago), and it is ripe for misinterpretation....and you "literalists" are just going to have to learn to deal with those facts

Ummm . . . You seem to have missed a few of the amendments, if you think the constitution denies equal rights to blacks or women. And you are right that the constitution does not cover every possible legal issue - that's why we have a legislature! It is not the judiciary's job to decide the issues that aren't addressed in the constitution. It's ours, through our elected representatives.

I'm willing to deal with those facts. How about you?

the true conservative:

Oh wow, this was an enlightening debate tactic. When you can't refute your opponent's point, just start lobbing insults.

Because Texas Pete writes that "The Constitution rarely requires interpretation." This could only be written by someone who has never read the constitution.

Because Texas Pete writes that "For the past century or so our Supreme court has been tainted by an over abundance of legal scholars and absolutely no people who really understand how what they do will really affect people." without providing a single example.

Because Texas Pete writes that "the bad thing about the Supreme court is that they are all Lawyers." There are reasons why people go to law school and why lawyers become judges. Interpreting the Constituion DOES REQUIRE some learning -- usually in a formal setting but I will not dispute that some people can do it without formal learning.

Pete's post is full of empty conservative talking points without substances -- therefore, I responded with an equally banal response.

Hysterically, Slate highlighted his Fray post -- I can only assume that was because of the obvious ignorance it portrayed.

Wow, are there really conservatives who think that? We shouldn't leave the law to people who have spent half a century studying it? If the constitution is not subject to interpretation, then the 9th amendment guarantees the right to an abortion. Come to think of it, the 9th amendment guarantees the right to do anything not specifically prohibited by the rest of the constitution. I'll tell you what Pete. We'll stop letting lawyers intepret the law, let congressmen and not doctors make medical diagnoses, and let clergymen create the cirriculum in science class, all in the name of the coonstitution not explicity forbidding it. Now if you will excuse me, I'm going to go marry someone of the same sex, have an abortion 3 days before my due date because I feel like it, use an old american flag to replace my gas cap, and go tell my kids that dinosaurs died more than 6000 years ago.

TexasPete has it partly right. If a statute or the Constitution speaks directly to an issue, we stop there. If you don't believe me, Google "Chevron deference" and behold the vast body of law.

But this begs the question what happens when the Constitution (or a statute) does not speak directly to an issue. It would be naive to think that the Constitution speaks directly to every issue. Indeed, if the Constitution spoke directly to every issue then we would not need statutes or regulations at all (and I think we can all agree that a Federal law criminalizing racketeering is a good thing).

The question, then, is how to apply the Constitution to questions that are not directly spoken to, and this is where people start arguing. The Constitution itself doesn't provide great guidance here, so it is not right to say that relying on some sources is unlawful or that relying on other sources is mandatory. If we are trying to apply the Constitution to a question of international law, then perhaps looking at international legal doctrines (which are often at least as old as the Constitution) may be appropriate. On the other hand, looking to the law of Turkey to decide whether mining is interstate commerce capable of regulation by Congress may be wrong-headed.

I think what most worries me is when people think the Constitution is a clearly written document. That is what I would call a "Level 1" knowledge of law: One knows enough to get the basics, but hasn't thought about anything long enough to figure out where things get vague. Take the right to keep and bear arms in the Second Amendment. The NRA wants us to believe this is clear and unequivocal language. But what does it mean to "keep and bear"? Keep in my home? Keep at a gun club? Keep in a holster strapped to my ankle? And what are "arms"? Does this include only small arms, or does it include artillery. Even in 1789 they were aware of the difference, but the language of the Second Amendment doesn't tell us with any specificity. Even if we want to say it is common sensical to limit it to small arms, who gets to decide what stuff belongs in what category? These sorts of questions plague almost every line in the Constitution and staring at the language simply won't give you much peace.

Saying that we can't let judges or Justices interpret the Constitution violates the Separation of Powers. If all courts are for is the mechanical application of clearly written law, then why have a separate branch? Indeed, if you follow this belief, you need to think carefully about amending the constitution to redact most of Article III. If, however, courts are supposed to be composed of learned people who specialize in reading and understanding how the law is supposed to work, then some measure of interpretation is required.

I recently looked at an airplane jet engine. I think its way too complicated - what with hises and wires everwhere. I think it would work better if airplane mechanics didn't build or repair airplane engines. A non-mechanic could look at it with fresh eyes. Wanna get on that plane?

As for the second amendment: what does "A well regulated militia, being necessary to the security of a free state . . ." mean? Does it somehow modify the rest of the Amendment? If so, how? If not, then why did the framers put it in there? Just to be wordy? Why didn't they just say "Alexander Hamilton has nice hair, the right of the people to keep and bear arms . . . "? You make good points on this Lefty.

You can't just look at the plain words of the Constitution to determine what your rights are. What does Amendment IX mean: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" ? Is that were we get out Right to Privacy?

You folks are missing a very important distinction. Of course judges must apply the law to specific, individual cases and make judgement calls that go beyond the specific wording of the law of the constitution. A classic example would be applying "unreasonable search and seizure" to include wiretapping telephones without a warrant. Any reasonable reading of that clause would conclude that if the founders had known about telephones and wiretapping, they would have required that a warrant be issued before it could be done.

But then we have a whole different class of "interpretation" that is much more problematic. Probably the best example of this would be the infamous Roe v Wade. Abortion was a known procedure at the time of the writing of the constitution. It was regulated or restricted in all the states at the time the constitution was ratified. Yet for hundreds of years, nobody understood the constitution to grant a fundamental right to terminate a pregnancy. Then all of a sudden, the Supreme Court, overturning the will of the people in all fifty states, declared abortion a fundamental constitutional right. But what had changed? The law? Technology? The constitution itself? Nope. The only thing different was that a majority of justices on the bench WANTED abortion to be legal.

I am not now arguing one way or the other on whether abortion should be legal. But I AM claiming that the court overstepped their constitutional authority by "finding" a right that none of the writers, ratifiers, or amenders of the constitution intended to include. It is not their place to impose their moral values on an unwilling populace. That is tyranny.

the true conservative:

Probably the best example of this would be the infamous Roe v Wade.

Roe v. Wade is a singular decision that stands apart from anything else. It really is not an "example" of any short term or long term trend. It was a decision that tried to do more than it needed to do by relying as much on medical texts and personal passion as on legal texts.

But this is not about "finding a right" this is about the constituion being a "living" document. The world has changed in the last 220 years and the concepts in the Constituion can be used in coming to an appropriate decision with full knowledge that the framers could not foretell the future.

In what sense do you say that Roe stands apart? It is one example of many I could have chosen where the court has imposed its own views of the way things "should be" to overturn long-standing law and tradition. When the court rules on whether a company can patent DNA, that is applying old laws to new situations. When the court rules that prayer in public schools, which was a practice older then the constitution itself, is suddenly unconstitutional, that is making it up to suit themselves. Surely you can see the difference?

Have you read Roe v. Wade? As even some in the pro-choice camp will admit, the decision is poorly reasoned and tries to legislate (by setting up standards for different trimesters based on viability, etc.).

The court regularly imposes it views on the way things should be to overturn long-standing laws, like school segregation. (I am not going to comment on them overturning long-standing tradition because I am not sure what that means.)

And you are wrong about your history. The debate over the role of religion and prayer in the public school classroom has been waged since the public school system became an organized system in the early 19th century. There were always competing statutes and legal arguments that did not make their way to the Supreme Court until the early 1960s.

Please re-read Roe. It is not premised on the notion that the Constitution literally protects abortion, but rather that abortion restrictions violate privacy interests that are (impliedly) Constitutionally protected. These same privacy interests had been asserted in other contexts, but we get heated because this is abortion. Roe is different because (1) the reasoning was strained and (2) it is about abortion, which is a topic that escapes calm discussion.

Why shouldn't the Court be able to look at the "will of the People" and say: "Sorry, you can't do that." We voluntarily ceded some power to a branch that contains no elected officials. The purpose of that was to insulate us from ourselves (remember tyranny of the masses?). We can't cry foul when those folks exercise the powers we gave them. Moreover, majority consensus does not make something Constitutional. (Again, tyranny of the masses anybody?) If the entire population of the western half of the United States were to come to the unanimous conclusion that all newspaper articles should be subject to approval by government officials, that unanimity doesn't change the fact that such a course of conduct violates the Freedom of the Press.

And why shouldn't the Court be able to look back at practices that were formerly permissible and say: "I know you used to be able to do that, but not any more." We don't gripe about the Dred Scott - Plessy switcheroo.

TexasPete states that "[i]f read, one can quickly find weather (sic) the issue is addressed within the words contained in the Constitution or not."

Perhaps Mr. Pete would like to inform us "weather" (sic) the terms "more perfect Union," "insure domestic tranquility," and "promote the general welfare" are defined in the preamble of the Constitution by a quick glance.

While he is done glancing through the stormy weather of his simple Constitutional crystal ball, he can ask it to provide a nice and simple definition of "involuntary servitude" and "appropriate legislation" in the Fourteenth Amendment.

Until then, may better minds do what they've done since time immemorial - interpret the Constitution for the "general welfare" as its lofty preamble so declares.