All this is going to do is sully the word "family"...

[Svartalf]

actually, it's patriarchal despotism.

[Lozzer]

actually, it's patriarchal despotism.

Paternalism.

[Svartalf]

Well, unless I'm sure the "family gummint" does fill the connotations that go with "paternalism", I prefer my own formulation.

Because if you got a religious right gummint doing just what it felt right, all the positive overtones of the term would go flying out the window... it would be a pure "daddy knows best and you will do as you're told" dictature

[Coito ergo sum]

I don't know - but, I just think "enemy" is a strong word. I think government tends to be overly bureaucratic - and I think that quite often government workers lack a sense of urgency that things really need to get done "today." It's more like "what doesn't get done today gets done tomorrow, no sense agonizing about it..." Things back up, and people have to wait....and wait.... and wait....in Casablanca....

Government is, as the Founders said, a necessary evil. It's like fire, it's useful when carefully controlled and not given too much fuel (money) but when the people lose control of it, it becomes a very dangerous enemy of liberty. When that happens, people should starve it of fuel (money) to bring it back under control, or douse it completely if it's uncontrollable.

Just a point of pedantry....One person said that - Thomas Paine. There is no such thing as "the Founders." There were lots of people involved in the break-away from England, and the creation of a new nation. Use of the term "the Founders" irritates me because it creates a false picture that these guys all shared the same view and had a single, common intent or view. The "intent of the Founders," and "the Founders said," etc. are almost never correct phrasings, since the men who make up the group of folks that founded the US almost never shared a single common intent and each of them had disparate views on almost every issue. "A" founder (small "f") said "Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one." No group of robed, mythical "Founders" said anything of the kind.

You might want to pick up a copy of "The Original Constitution - What it Actually Said and Meant" by Robert G. Natelson.

It'll improve your understanding of the Founders and what they said and meant considerably.

Improve my understanding?

My friend, I studied the Constitution for three years in school, I've ready the Federalist Papers and the notes from the Constitutional Convention, as well as individual writings of Madison, Hamilton, etc. I am pretty well acquainted with the Constitution, and what it actually says and means. If you'd like, I can give you some publications to read to improve your understanding of what those who put the Constitution together disparately said and meant. For example, you might wish to try, for a 1000 page primer - Nowak & Rotunda, Constitutional Law (Hornbook), Thomson West Publishing. You should also consider, Erwin Chemerinsky's book "Constitutional Law: Principles And Policies." And, then to dig deeper into what the men involved at the time said - The Debate on the Constitution : Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification : Part One and Part Two.

A great way to improve your understanding is to hit a law library (most counties have one near the Circuit courthouse), and pull the volumes of "United States Code Annotated" (it's large series in sort of a maroon/purplish color. Looks like this:

The section on the Constitution adds "annotations" below each section of the Constitution, listing Supreme Court opinions which interpret and apply each provision. In SCOTUS opinions, the Justices commonly discuss original intent and the literal meanings of words and phrases used in the Constitution, citing various 18th century sources and one "Founder" or another. The important part that reading SCOTUS opinions plays in improving your understanding of the Constitution is that you aren't reading the provisions in a vacuum, but rather they are being read in light of specific factual and legal situations.

Enjoy your reading.

[Coito ergo sum]

But, I will say that a bunch of teabaggers reading the constitution in Congress was a stupid waste of time and money, and was merely a political show. It was grating because most of them just think the Constitution means whatever they happen to want it to mean.

To the contrary, while it's true of most of Congress - most federal employees in general - are more than happy to ignore it, the Tea Party caucus actually does pay significant attention to what the U.S. constitution actually says. Opening the session with a reading of it helps to remind the members of Congress that they're only supposed to pass laws that are authorized by the constitution, which is a good thing.

Well, I suppose that is one way to look at. What I've found, though, is that the Tea Party caucus is no more likely to correctly interpret the Constitution than any other Congressperson. They, like most folks, think the Constitution expressly authorizes whatever they feel is right, and expressly prohibits everything they oppose.

If I thought opening the session with a reading of the Constitution helped to focus members of Congress' attention in the way you describe, I would be quite pleased for them to do it. I would also be monumentally embarrassed for them and our country. If elected federal Congresspeople need an aloud reading of the Constitution to know their duty to only pass laws that are within their limited powers, then they are a sorry lot indeed.

[Coito ergo sum]

100% correct on that.

I also get a little pissed off when people (often politicians) try to claim that their views are more in line with the intentions of the founders. Hell, the reason the US has a bicameral legistlature in the first place is because of something called the Connecticut Compromise. I found it particularly grating when a bunch of Teabagger rubes in the current Congress started off their session by reading aloud the Constitution on the floor of the House, as if to remind everyone else that the Congress had been losing sight of it. But they neglected to read the oringinal laws, which included things like the Three-Fifths Compromise...

Evidently you have no understanding of why the Compromise exists or why it was agreed to. You really should educate yourself before you manifest your ignorance further.

I don't think this sort of garbage is necessary in a serious conversation. If we're busting balls and joking around, that's one thing. But, if we're having a serious discussion, then pointing out that you think Ian has no understanding of something and should "educate himself" before he "manifests his ignorance," is a foolish ad hominem, and I think you owe Ian a sincere apology.

Maybe he is missing something. Let's assume that. I'm not saying he is. But, let's assume you're right. If you're going to engage in a discussion on that topic, then it's up to you to state your position and back it up. Just launching volleys basically calling him names is quite wrong, and I think against the rules here.

Why don't you state succinctly why you think the Compromise existed and why it was agreed to, and if you think that those reasons homogenize the views of the people involved, such that we can state that there is one, single "Intent of the Founders," please explain how that is. And, state what sources, specifically, you use to get to the unambiguous "Intent of the Founders." Federalist? Antifederalist? Etc.

[Coito ergo sum]

There is only ONE WAY to lawfully and ethically reinterpret what the Founders intended for our system of government, and that's by formally amending the document. All other "interpretations" of a "living Constitution" by any process or person is illegitimate and a violation of the compact under which the document was ratified by the states.

This is a false choice, and straw man mixed together.

First of all - there is no single "Intent of the Founders." Therefore, step one in any Constitutional analysis is to read the applicable provision(s) of the Constitution and figure out what they MEAN, not what some person or another "intended" them to mean. Often, when Madison or some other "Founder" was discussing the Constitution, they were discussing a draft, and they were discussing language different from what ultimately was ratified. So, we are hearing, quite often when reading the 18th century writings, what one "Founder" or another WANTED and was lobbying/pushing for. Not every "Founder" got the language they "intended" to be in the Constitution.

Thus, the true first step of Constitutional interpretation is not "What did James Madison, or Gouverneur Morris or George Wythe, or Thomas Paine, or Roger Sherman or Edmund Randolph or John Dickinson, etc. -- any number of the main contributors and signers of the Constitution thought it SHOULD mean or intended it to mean..." - the first step is what DOES it mean - what were the meanings of the words in the 18th century AS WRITTEN. If George Wythe intended that only pink fuzzy bunnies be permitted to serve as President of the US, that doesn't change what the words actually MEAN.

Interpretation = finding the meaning of the words.

Then, one "applies" - see interpret and apply -- one applies the words, with meaning of those words and phrases, to a specific situation. A law. The Congress is supposed write laws with some demonstrable basis in the the powers of the legislature under Article III of the Constitution, or some amendment. The President is supposed to enforce the laws made by Congress consistent with the Constitution, and the Supreme Court is supposed to interpret and apply the law to Cases and Controversies properly brought before it.

Now, the US Constitution is not a code of regulations, and is not written as such. It is written broadly, and provides very general proscriptions, very general grants of power, and those that drafted it did not purport to make a document that was absolutely clear on all points. The reality is that there are areas where there are differences of opinion as to what the Constitution actually means and meant in the 18th century - and very often it's not at all clear what the terms meant in the 18th century vis-a-vis a given factual situation, and it is often even murkier to glean what one "Founder"or another "intended" it to be.

Frankly, most of the "intent of the Founders" folks come across to me as basically saying, "I think X is right and makes perfect sense - therefore, that must have been the collective "Intent of the Founders," since, of course, they would only do things that make perfect sense." I can't think of a time where someone has made an allegation that something or another is in accord with the "intent of the Founders" where that person has come up with any evidence of that intent - a quote - that backs it up. The closest they come is referring generally to "read the Federalist papers." Not good enough, of course. If one is making a specific allegation that "The Founders" intended X, Y or Z, then it's incumbent upon the person making that allegation to come forward with evidence of that specific intent. Who wrote what, and when?

[Coito ergo sum]

Government = family? THITS SOCIALIZISM

Government = family? That's plain asinine. I'm not sure that means of production of asinine things are predominantly held by the government, but a good argument can certainly be made in that regard. So, the jury is still out as to whether it is socialism....

[Seth]

There is only ONE WAY to lawfully and ethically reinterpret what the Founders intended for our system of government, and that's by formally amending the document. All other "interpretations" of a "living Constitution" by any process or person is illegitimate and a violation of the compact under which the document was ratified by the states.

This is a false choice, and straw man mixed together.

First of all - there is no single "Intent of the Founders."

Well, to be more accurate, it's not the intent of the Framers that's of supreme importance, it's the intent of the Ratifiers (as the representatives of the People). They are the ones who actually voted to ratify what the Framers wrote. And insofar as the intent of the Ratifiers is concerned, it's perfectly clear that the Constitution was to be "interpreted" only by the laborious process of actually amending it, thereby giving the People, who are the ultimate authority, the opportunity to debate and decide if the new interpretation suits their needs and desires.

Therefore, step one in any Constitutional analysis is to read the applicable provision(s) of the Constitution and figure out what they MEAN, not what some person or another "intended" them to mean. Often, when Madison or some other "Founder" was discussing the Constitution, they were discussing a draft, and they were discussing language different from what ultimately was ratified. So, we are hearing, quite often when reading the 18th century writings, what one "Founder" or another WANTED and was lobbying/pushing for. Not every "Founder" got the language they "intended" to be in the Constitution.

Yes and no. While it is true that no one Founder's statements on what the meaning of a provision of the Constitution is authoritative, it is the sum total of the writings and recorded discussions of the meaning and intent of the provision found in the contemporary record of both the drafters, but more importantly (as Robert Natelson points out in his book "The Original Constitution - What it Actually Said and Meant") the Ratifiers of the Constitution that determine what the provision meant to those who were actually voting on the provisions that would be applied to the People. It is also important to understand what the legal conventions and common usages were in the 18th century, because that has a substantial impact on what the meaning of a provision is.

For example, I, along with many others, have argued in the past that the concept of "judicial review" of federal and state laws under the Constitution was unknown until John Marshall thought of it in Marbury v. Madison. After reading Natelson's book, I'm now convinced that I was in error. He explains that the contemporary legal thinking overwhelmingly favors judicial review of inferior laws, and that both the Federalists and anti-Federalists who discussed the jurisdiction and power of the federal courts fully understood and accepted that a federal court would have the power to overturn a state law that conflicts with the Constitution. He writes:

Actually, the Founders who expressed pre-ratification opinions on the subject considered jusdicial review part of proepr judging. They did not want a statute that clashed with the Constitution to survive, and they expected judges to grant priority over such statutes to the Constitution. At the Virginia ratifying convention, for example, Anti-Federalists worried about whether the courts would be aggressive enough to strike down unconstitutional laws, while Federalists thought they would.

Americans had a centuries-old acquaintance with the idea that lower-level laws were invalid if they clashed with higher level laws. Ad British subjects, they had understood that laws passed by a colonial assembly were void if inconsistent with the colonial charter or with the Magna Carta. In the Continental Congress, a congressional committee concluded that some state laws violated the rules under which the United States and been created, and that such laws therefore "ought to be deemed void." By the time Marbury v. Madison had been decided, there had been about three dozen American court cases-- including some high-profile ones before the Constitution's ratification-- in which judicial review was applied or assumed.

Thus, the true first step of Constitutional interpretation is not "What did James Madison, or Gouverneur Morris or George Wythe, or Thomas Paine, or Roger Sherman or Edmund Randolph or John Dickinson, etc. -- any number of the main contributors and signers of the Constitution thought it SHOULD mean or intended it to mean..." - the first step is what DOES it mean - what were the meanings of the words in the 18th century AS WRITTEN. If George Wythe intended that only pink fuzzy bunnies be permitted to serve as President of the US, that doesn't change what the words actually MEAN.

Interpretation = finding the meaning of the words.

I think we can agree on this, so long as it's clear that the meaning of the words is the meaning as written according to 18th century understanding of both the words and the legal principles in use at the time, not flexed to include contemporary meanings and usages.

Then, one "applies" - see interpret and apply -- one applies the words, with meaning of those words and phrases, to a specific situation. A law. The Congress is supposed write laws with some demonstrable basis in the the powers of the legislature under Article III of the Constitution, or some amendment. The President is supposed to enforce the laws made by Congress consistent with the Constitution, and the Supreme Court is supposed to interpret and apply the law to Cases and Controversies properly brought before it.

Now, the US Constitution is not a code of regulations, and is not written as such. It is written broadly, and provides very general proscriptions, very general grants of power, and those that drafted it did not purport to make a document that was absolutely clear on all points. The reality is that there are areas where there are differences of opinion as to what the Constitution actually means and meant in the 18th century - and very often it's not at all clear what the terms meant in the 18th century vis-a-vis a given factual situation, and it is often even murkier to glean what one "Founder"or another "intended" it to be.

Actually, after reading Natelson, I disagree. I think sufficient scholarship on the subject of 18th century usage and custom clearly reveals what both the Founders and the Ratifiers "intended" the document to mean. The problem seems to be that many commentators on the subject choose to ignore the contemporary 18th century usages and understandings not just of words, but of social, legal and legislative custom, and they do it deliberately because the "Framer's intent" according to their contemporary usages conflicts with the current usages that are better suited to distorting the language to suit a much more liberal and progressive interpretation than those who wrote and ratified the document would have agreed with.

Natelson writes:

The system was altered less by direct amendment, however, than by federal politicians and judges. One of the Constitution's chief purposes had been to restrain federal officeholders, but after 1933 those officeholders broke much of that restraint.

They were able to do so in part because the judiciary failed to check sufficiently the power of Congress and the President. Successive opinions by the Supreme Court (1) largely repealed the constitutional limits on the Taxation, Commerce, and Enclave Powers, (2) discarded the Founding-Era rule that fiduciary power could not be delegated, (3) resurrected the doctrine of "inherent sovereign authority," (4) weakened the Contracts Clause, and (5) approved presidential decisions to incarcerate, even execute, American citizens without benefit of habeas corpus, grand jury indictment, or jury trial.

Just as the Supreme Court permitted federal officials to break out of their confined authority, it increasingly imposed restrictions on what was supposeed to be the broader authority of the states. To be sure, the Cour did cease its occasional practice of overturning state economic regulations. But it began to review other stat laws far more intrusevely. As early as 1931 (some would argue earlier), the Court began to apply its version of the Bill of Rights to the states. In ensuing years the Supreme Court took additional power over areas of state concern--sometimes based on its reading of the Bill of Rights and sometimes wiht little connection to the constitutional text. Over time, the Court began to supervise how state governments treated religion, speech, assembly and the press; how they tried the accsed and punished the convicted; how they regulated defamation, education, health , social services, and land us; and even houw state legislatures and local governments were structured.

In this way, federal officeholders and judes altered the Constitution into something quite different; an essentially a unitary national system in which the central government has nearly unlimited claims on citizens. Government power is tempered somewhat by a handful of individual right sporadically enforced (and sometimes over-enforced) by the courts and by fifty provinces that-- while heavily dependent on the central government--still are considered indestructible.

Whatever you may call this altered plan of government, it is not the Constitution as "We the People" ratified and amended it, but something very different. Whether "We the People" want our real Constitution back is ultimately for us to decide.

Frankly, most of the "intent of the Founders" folks come across to me as basically saying, "I think X is right and makes perfect sense - therefore, that must have been the collective "Intent of the Founders," since, of course, they would only do things that make perfect sense." I can't think of a time where someone has made an allegation that something or another is in accord with the "intent of the Founders" where that person has come up with any evidence of that intent - a quote - that backs it up. The closest they come is referring generally to "read the Federalist papers." Not good enough, of course. If one is making a specific allegation that "The Founders" intended X, Y or Z, then it's incumbent upon the person making that allegation to come forward with evidence of that specific intent. Who wrote what, and when?

Well, it's true that the amount of research required to back up with quotes and documents generally precludes such a detailed bibliography in a discussion forum, but Natelson has done a fine job, and reading the Federalist Papers is indeed a good way to gain a reasonable understanding of what the Federalists intended. By the same token, however, as Natelson points out, it's just as important to know what the Anti-Federalists had to say about it, particularly at the ratification convention level, because that is where the actual substantive discussions of those charged with ultimately approving what had been submitted by the Constitutional Convention took place. Therefore that is where the true understanding and intent lies.

I highly recommend Natelson's book. It illuminated a good many things for me.

[Coito ergo sum]

There is only ONE WAY to lawfully and ethically reinterpret what the Founders intended for our system of government, and that's by formally amending the document. All other "interpretations" of a "living Constitution" by any process or person is illegitimate and a violation of the compact under which the document was ratified by the states.

This is a false choice, and straw man mixed together.

First of all - there is no single "Intent of the Founders."

Well, to be more accurate, it's not the intent of the Framers that's of supreme importance, it's the intent of the Ratifiers (as the representatives of the People). They are the ones who actually voted to ratify what the Framers wrote. And insofar as the intent of the Ratifiers is concerned, it's perfectly clear that the Constitution was to be "interpreted" only by the laborious process of actually amending it, thereby giving the People, who are the ultimate authority, the opportunity to debate and decide if the new interpretation suits their needs and desires.

One, prove that. Where do you get this perfect clarity that the "ratifiers" (which of them?) intended what you say they intended? Do you have a citation? If not, then it's just your assertion, without evidence.

Two, no, "interpretation" means, essentially, "to find the meaning of..." -- it doesn't mean "twist" the meaning of, or create a new meaning where one doesn't exist. When you read what someone writes on a message board, you're interpreting it, because you are determining what a person means. The Supreme Court interprets the constitution every time it renders an opinion, and the Congress interprets the Constitution when it decides whether it has the power to make a particular law under Article I, section 8.

And, the Constitution doesn't cover everything, but the government can still do them. For example, Congress has made reams of laws concerning "immigration." It really doesn't explicitly say anything about the Congress having that authority. The closest we get is that Congress has the power "To establish an uniform Rule of Naturalization,..." Naturalization is the process of making new citizens. It has nothing to do with visas, work permits, entry and exit from the US, barring people from entering the country, green cards, and all sorts of things (all of which are decidedly non-uniform). So, from where does the federal government have the authority to control immigration to the US? Answer: not from the Constitution it doesn't. Are you suggesting that the federal government does not have the authority to control the borders?

Therefore, step one in any Constitutional analysis is to read the applicable provision(s) of the Constitution and figure out what they MEAN, not what some person or another "intended" them to mean. Often, when Madison or some other "Founder" was discussing the Constitution, they were discussing a draft, and they were discussing language different from what ultimately was ratified. So, we are hearing, quite often when reading the 18th century writings, what one "Founder" or another WANTED and was lobbying/pushing for. Not every "Founder" got the language they "intended" to be in the Constitution.

Yes and no. While it is true that no one Founder's statements on what the meaning of a provision of the Constitution is authoritative, it is the sum total of the writings and recorded discussions of the meaning and intent of the provision found in the contemporary record of both the drafters,

Where do you get that? Where does it say that the meaning of the words in the Constitution are to be interpreted in light of the "sum total of the writings and recorded discussions of the meaning and intent of the provision..." You have a source for that? It doesn't say that in the Constitution. The Constitution says what it says, and its meaning can't be vitiated or altered based on an argument relative to the "intent" of the various "Founders," can it? Isn't it true that the words are to mean what they say, not what someone "intended" them to mean?

but more importantly (as Robert Natelson points out in his book "The Original Constitution - What it Actually Said and Meant") the Ratifiers of the Constitution that determine what the provision meant to those who were actually voting on the provisions that would be applied to the People. It is also important to understand what the legal conventions and common usages were in the 18th century, because that has a substantial impact on what the meaning of a provision is.

Many of the ratifiers ratified the constitution without getting everything they intended. Like any compromise document, people intend one thing, but are constrained by political realities, and vote for something different than they intend.

For example, I, along with many others, have argued in the past that the concept of "judicial review" of federal and state laws under the Constitution was unknown until John Marshall thought of it in Marbury v. Madison. After reading Natelson's book, I'm now convinced that I was in error. He explains that the contemporary legal thinking overwhelmingly favors judicial review of inferior laws, and that both the Federalists and anti-Federalists who discussed the jurisdiction and power of the federal courts fully understood and accepted that a federal court would have the power to overturn a state law that conflicts with the Constitution. He writes:

Nobody thinks the "concept" was unknown. The concept was well-known. What was said is that the Constitution does not grant that power to the Court. It doesn't.

Actually, the Founders who expressed pre-ratification opinions on the subject considered jusdicial review part of proepr judging. They did not want a statute that clashed with the Constitution to survive, and they expected judges to grant priority over such statutes to the Constitution. At the Virginia ratifying convention, for example, Anti-Federalists worried about whether the courts would be aggressive enough to strike down unconstitutional laws, while Federalists thought they would.

Americans had a centuries-old acquaintance with the idea that lower-level laws were invalid if they clashed with higher level laws. Ad British subjects, they had understood that laws passed by a colonial assembly were void if inconsistent with the colonial charter or with the Magna Carta. In the Continental Congress, a congressional committee concluded that some state laws violated the rules under which the United States and been created, and that such laws therefore "ought to be deemed void." By the time Marbury v. Madison had been decided, there had been about three dozen American court cases-- including some high-profile ones before the Constitution's ratification-- in which judicial review was applied or assumed.

But, it was controversial, at the time. It's not as if Marbury v Madison was a "ho hum - just reaffirming what is already the case, and what is so commonly thought to be true as to merely be assumed as axiomatic."

Thus, the true first step of Constitutional interpretation is not "What did James Madison, or Gouverneur Morris or George Wythe, or Thomas Paine, or Roger Sherman or Edmund Randolph or John Dickinson, etc. -- any number of the main contributors and signers of the Constitution thought it SHOULD mean or intended it to mean..." - the first step is what DOES it mean - what were the meanings of the words in the 18th century AS WRITTEN. If George Wythe intended that only pink fuzzy bunnies be permitted to serve as President of the US, that doesn't change what the words actually MEAN.

Interpretation = finding the meaning of the words.

I think we can agree on this, so long as it's clear that the meaning of the words is the meaning as written according to 18th century understanding of both the words and the legal principles in use at the time, not flexed to include contemporary meanings and usages.

Sure, but if we agree on that, then we agree that it has nothing to do with "intent" of one of the drafters or signers.

Then, one "applies" - see interpret and apply -- one applies the words, with meaning of those words and phrases, to a specific situation. A law. The Congress is supposed write laws with some demonstrable basis in the the powers of the legislature under Article III of the Constitution, or some amendment. The President is supposed to enforce the laws made by Congress consistent with the Constitution, and the Supreme Court is supposed to interpret and apply the law to Cases and Controversies properly brought before it.

Now, the US Constitution is not a code of regulations, and is not written as such. It is written broadly, and provides very general proscriptions, very general grants of power, and those that drafted it did not purport to make a document that was absolutely clear on all points. The reality is that there are areas where there are differences of opinion as to what the Constitution actually means and meant in the 18th century - and very often it's not at all clear what the terms meant in the 18th century vis-a-vis a given factual situation, and it is often even murkier to glean what one "Founder"or another "intended" it to be.

Actually, after reading Natelson, I disagree. I think sufficient scholarship on the subject of 18th century usage and custom clearly reveals what both the Founders and the Ratifiers "intended" the document to mean.

Oh, they all intended the same thing? All the "Founders" and "Ratifiers?" Sometimes Founders even contradicted themselves, as well as each other. But, the general statement you just made is meaningless anyway. Of course there isn't scholarship that shows what "The Founders" intended "the document" to mean. There may be scholarship that discusses the intent of SOME of the Founders with respect to CERTAIN of the provisions in the Constitution.

The problem seems to be that many commentators on the subject choose to ignore the contemporary 18th century usages and understandings not just of words, but of social, legal and legislative custom, and they do it deliberately because the "Framer's intent" according to their contemporary usages conflicts with the current usages that are better suited to distorting the language to suit a much more liberal and progressive interpretation than those who wrote and ratified the document would have agreed with.

You'll have to be more specific as to who is doing that, and in what context. Sure, I'm sure some folks distort a lot of things. That occurs in every sphere from Contitutional literalists, to original intent folks, all the way to the living document folks.

Frankly, most of the "intent of the Founders" folks come across to me as basically saying, "I think X is right and makes perfect sense - therefore, that must have been the collective "Intent of the Founders," since, of course, they would only do things that make perfect sense." I can't think of a time where someone has made an allegation that something or another is in accord with the "intent of the Founders" where that person has come up with any evidence of that intent - a quote - that backs it up. The closest they come is referring generally to "read the Federalist papers." Not good enough, of course. If one is making a specific allegation that "The Founders" intended X, Y or Z, then it's incumbent upon the person making that allegation to come forward with evidence of that specific intent. Who wrote what, and when?

Well, it's true that the amount of research required to back up with quotes and documents generally precludes such a detailed bibliography in a discussion forum, but Natelson has done a fine job, and reading the Federalist Papers is indeed a good way to gain a reasonable understanding of what the Federalists intended.

But, the antifederalists intended something quite different.

By the same token, however, as Natelson points out, it's just as important to know what the Anti-Federalists had to say about it, particularly at the ratification convention level, because that is where the actual substantive discussions of those charged with ultimately approving what had been submitted by the Constitutional Convention took place. Therefore that is where the true understanding and intent lies.

I highly recommend Natelson's book. It illuminated a good many things for me.

Sounds great. However, Natelson too is only one man, and you still haven't explained where you get the idea that the intent of "The Founders" is supposed to control the meaning of the words in the Constitution....neither has Natelson.

[Seth]

There is only ONE WAY to lawfully and ethically reinterpret what the Founders intended for our system of government, and that's by formally amending the document. All other "interpretations" of a "living Constitution" by any process or person is illegitimate and a violation of the compact under which the document was ratified by the states.

This is a false choice, and straw man mixed together.

First of all - there is no single "Intent of the Founders."

Well, to be more accurate, it's not the intent of the Framers that's of supreme importance, it's the intent of the Ratifiers (as the representatives of the People). They are the ones who actually voted to ratify what the Framers wrote. And insofar as the intent of the Ratifiers is concerned, it's perfectly clear that the Constitution was to be "interpreted" only by the laborious process of actually amending it, thereby giving the People, who are the ultimate authority, the opportunity to debate and decide if the new interpretation suits their needs and desires.

One, prove that.

Prove what? That the meaning of the Constitution is supposed to be construed as it was intended by the people who wrote and ratified the document? How could it be otherwise? Or do you mean prove that the intent was that the Constitution only be "interpreted" (perhaps I should have said "reinterpreted") through the amendment process? In that case, it's also self-evident, otherwise the sections regarding amendment are surplusage, which violates one of the rules of legislative drafting that the Founders used at the time.

Where do you get this perfect clarity that the "ratifiers" (which of them?) intended what you say they intended? Do you have a citation? If not, then it's just your assertion, without evidence.

I didn't say there was "perfect clarity," merely that the intent of the Founders and the Ratifiers is easily discerned by looking at their contemporary writings, the records of the debates surrounding ratification, and the common usages and customs of the time.

Two, no, "interpretation" means, essentially, "to find the meaning of..." -- it doesn't mean "twist" the meaning of, or create a new meaning where one doesn't exist. When you read what someone writes on a message board, you're interpreting it, because you are determining what a person means.

I'm pretty sure we're in agreement on this, I'm simply claiming that Progressives and liberals, particularly since about 1912, have been twisting, rather than interpreting. In other words, they have been striving to create NEW meanings not intended by the authors and ratifiers of the document in order to justify their own unconstitutional actions.

The Supreme Court interprets the constitution every time it renders an opinion, and the Congress interprets the Constitution when it decides whether it has the power to make a particular law under Article I, section 8.

But do they interpret it correctly? That's the question before us. The answer is, since about 1912, largely "no."

And, the Constitution doesn't cover everything, but the government can still do them. For example, Congress has made reams of laws concerning "immigration." It really doesn't explicitly say anything about the Congress having that authority. The closest we get is that Congress has the power "To establish an uniform Rule of Naturalization,..." Naturalization is the process of making new citizens. It has nothing to do with visas, work permits, entry and exit from the US, barring people from entering the country, green cards, and all sorts of things (all of which are decidedly non-uniform). So, from where does the federal government have the authority to control immigration to the US? Answer: not from the Constitution it doesn't. Are you suggesting that the federal government does not have the authority to control the borders?

No, because the authority to control immigration is inherent in the power to control naturalization, and the "all necessary and proper" clause gives them the authority to create rules in that regard. But that power is not unlimited. Congress cannot, for example "unnaturalize" a natural-born citizen or create a non-uniform rule of naturalization.

And of course the Constitution does not cover everything directly and I have never suggested that it does.

Therefore, step one in any Constitutional analysis is to read the applicable provision(s) of the Constitution and figure out what they MEAN, not what some person or another "intended" them to mean. Often, when Madison or some other "Founder" was discussing the Constitution, they were discussing a draft, and they were discussing language different from what ultimately was ratified. So, we are hearing, quite often when reading the 18th century writings, what one "Founder" or another WANTED and was lobbying/pushing for. Not every "Founder" got the language they "intended" to be in the Constitution.

Yes and no. While it is true that no one Founder's statements on what the meaning of a provision of the Constitution is authoritative, it is the sum total of the writings and recorded discussions of the meaning and intent of the provision found in the contemporary record of both the drafters,

Where do you get that? Where does it say that the meaning of the words in the Constitution are to be interpreted in light of the "sum total of the writings and recorded discussions of the meaning and intent of the provision..." You have a source for that? It doesn't say that in the Constitution. The Constitution says what it says, and its meaning can't be vitiated or altered based on an argument relative to the "intent" of the various "Founders," can it? Isn't it true that the words are to mean what they say, not what someone "intended" them to mean?

How can you separate what the words say, and mean to say, from what the authors and those who agreed to accept the words meant them to say? Legislative intent is always the basic touchstone of any interpretation of any law by a court if there is any question regarding the plain meaning. This is necessarily so because without reliance on the intent of the drafters of the law, any ambiguity, or any broad grant of power, can be construed to mean almost anything. If we are not to rely upon what those who wrote the Constitution meant and intended, then why did they bother to write the document and have the debates in the first place? Why did they not simply say "the King decides as he pleases?"

And you are attempting to be too literal here. Obviously we do not have recordings of everything those who wrote and ratified the Constitution said and thought, but we can, and must reference what remains of the record of those deliberations in deciding what the meanings of the words they used are, and how they were understood at the time. This is the only way to discern legislative intent in deciding how to apply the broad grants of power the Constitution contains.

but more importantly (as Robert Natelson points out in his book "The Original Constitution - What it Actually Said and Meant") the Ratifiers of the Constitution that determine what the provision meant to those who were actually voting on the provisions that would be applied to the People. It is also important to understand what the legal conventions and common usages were in the 18th century, because that has a substantial impact on what the meaning of a provision is.

Many of the ratifiers ratified the constitution without getting everything they intended. Like any compromise document, people intend one thing, but are constrained by political realities, and vote for something different than they intend.

Correct. But you imply that we may simply disregard what they had to say about some provision because what one person wrote or is reported to have said is not authoritative. While it is true that no one Framer's or Ratifier's opinion is authoritative, and you are quite right that many people fall into this trap, we have no other choice than to look at the contemporary records that remain in order to try to discern what the consensus opinion was that caused them to write what they wrote and ratify what was written.

What other method of interpreting what someone else has written and approved would you have us use?

For example, I, along with many others, have argued in the past that the concept of "judicial review" of federal and state laws under the Constitution was unknown until John Marshall thought of it in Marbury v. Madison. After reading Natelson's book, I'm now convinced that I was in error. He explains that the contemporary legal thinking overwhelmingly favors judicial review of inferior laws, and that both the Federalists and anti-Federalists who discussed the jurisdiction and power of the federal courts fully understood and accepted that a federal court would have the power to overturn a state law that conflicts with the Constitution. He writes:

Nobody thinks the "concept" was unknown. The concept was well-known. What was said is that the Constitution does not grant that power to the Court. It doesn't.

Er, many people today think that Marbury v. Madison was an unconstitutional arrogation of power by the Supreme Court because the Constitution does not explicitly grant the power of judicial review. I thought so. But I'm now persuaded that I was in error, and that error was based on a lack of understanding of the well-known principles of law and governance that prevailed at the time the Constitution was written, which included judicial review and supremacy of higher law as ordinary and well-understood contemporary principles that are therefore inherently part of the proper interpretation of the Constitution.

Actually, the Founders who expressed pre-ratification opinions on the subject considered jusdicial review part of proepr judging. They did not want a statute that clashed with the Constitution to survive, and they expected judges to grant priority over such statutes to the Constitution. At the Virginia ratifying convention, for example, Anti-Federalists worried about whether the courts would be aggressive enough to strike down unconstitutional laws, while Federalists thought they would.

Americans had a centuries-old acquaintance with the idea that lower-level laws were invalid if they clashed with higher level laws. Ad British subjects, they had understood that laws passed by a colonial assembly were void if inconsistent with the colonial charter or with the Magna Carta. In the Continental Congress, a congressional committee concluded that some state laws violated the rules under which the United States and been created, and that such laws therefore "ought to be deemed void." By the time Marbury v. Madison had been decided, there had been about three dozen American court cases-- including some high-profile ones before the Constitution's ratification-- in which judicial review was applied or assumed.

But, it was controversial, at the time. It's not as if Marbury v Madison was a "ho hum - just reaffirming what is already the case, and what is so commonly thought to be true as to merely be assumed as axiomatic."

Was it controversial at the time? I know it's controversial now, but I've not seen much evidence that anybody was particularly shocked at the decision at the time. Do you have some citation to that effect?

Thus, the true first step of Constitutional interpretation is not "What did James Madison, or Gouverneur Morris or George Wythe, or Thomas Paine, or Roger Sherman or Edmund Randolph or John Dickinson, etc. -- any number of the main contributors and signers of the Constitution thought it SHOULD mean or intended it to mean..." - the first step is what DOES it mean - what were the meanings of the words in the 18th century AS WRITTEN. If George Wythe intended that only pink fuzzy bunnies be permitted to serve as President of the US, that doesn't change what the words actually MEAN.

Interpretation = finding the meaning of the words.

I think we can agree on this, so long as it's clear that the meaning of the words is the meaning as written according to 18th century understanding of both the words and the legal principles in use at the time, not flexed to include contemporary meanings and usages.

Sure, but if we agree on that, then we agree that it has nothing to do with "intent" of one of the drafters or signers.

The key word being "one." I've never claimed that the opinion of "one" of the drafters or signers is conclusive. But combined together, the legislative record and knowledge of contemporary usage and custom, gives us the best view of what they intended as a group in drafting and ratifying the document. We really have no other choice when there are ambiguities that must be addressed about the scope of federal power than to look at all the available evidence, including the contemporary writings and records of the authors and ratifiers.

Then, one "applies" - see interpret and apply -- one applies the words, with meaning of those words and phrases, to a specific situation. A law. The Congress is supposed write laws with some demonstrable basis in the the powers of the legislature under Article III of the Constitution, or some amendment. The President is supposed to enforce the laws made by Congress consistent with the Constitution, and the Supreme Court is supposed to interpret and apply the law to Cases and Controversies properly brought before it.

Now, the US Constitution is not a code of regulations, and is not written as such. It is written broadly, and provides very general proscriptions, very general grants of power, and those that drafted it did not purport to make a document that was absolutely clear on all points. The reality is that there are areas where there are differences of opinion as to what the Constitution actually means and meant in the 18th century - and very often it's not at all clear what the terms meant in the 18th century vis-a-vis a given factual situation, and it is often even murkier to glean what one "Founder"or another "intended" it to be.

Actually, after reading Natelson, I disagree. I think sufficient scholarship on the subject of 18th century usage and custom clearly reveals what both the Founders and the Ratifiers "intended" the document to mean.

Oh, they all intended the same thing? All the "Founders" and "Ratifiers?" Sometimes Founders even contradicted themselves, as well as each other. But, the general statement you just made is meaningless anyway. Of course there isn't scholarship that shows what "The Founders" intended "the document" to mean. There may be scholarship that discusses the intent of SOME of the Founders with respect to CERTAIN of the provisions in the Constitution.

Now you're picking nits. Obviously without being able to canvass each author and ratifier we cannot know anything with absolute certainty, but that's not what I'm saying. And I disagree that there is not sufficient scholarship to determine what the Founders (meaning both the authors and the ratifiers) intended the document to mean. Most of the Constitution is crystal clear in its meaning, and the rest can be properly interpreted by reference to the historical record, as opposed to applying meanings and intentions that were not part of the culture then, but may be today.

The argument for "original intent" is really nothing more than saying that the Constitution means what it meant when it was written, not what some might wish it to mean today, as a result of shifting definitions and understandings of law and governance. It's intended to be a firm foundation for government that provides us with a common basis and understanding of the principles under which our government operates rather than being a "living" document that shifts its meaning with every cultural shift in language or practice. And the manner in which the foundational principles of our Republic change is supposed to be through careful and thoughtful amendment of the foundation using the process designated for that purpose, not through either judicial activism or legislative chipping-away at the proscriptions on government power that are built in to the document for very good reasons.

The problem seems to be that many commentators on the subject choose to ignore the contemporary 18th century usages and understandings not just of words, but of social, legal and legislative custom, and they do it deliberately because the "Framer's intent" according to their contemporary usages conflicts with the current usages that are better suited to distorting the language to suit a much more liberal and progressive interpretation than those who wrote and ratified the document would have agreed with.

You'll have to be more specific as to who is doing that, and in what context. Sure, I'm sure some folks distort a lot of things. That occurs in every sphere from Contitutional literalists, to original intent folks, all the way to the living document folks.

We can start with Woodrow Wilson and FDR if you like.

Frankly, most of the "intent of the Founders" folks come across to me as basically saying, "I think X is right and makes perfect sense - therefore, that must have been the collective "Intent of the Founders," since, of course, they would only do things that make perfect sense." I can't think of a time where someone has made an allegation that something or another is in accord with the "intent of the Founders" where that person has come up with any evidence of that intent - a quote - that backs it up. The closest they come is referring generally to "read the Federalist papers." Not good enough, of course. If one is making a specific allegation that "The Founders" intended X, Y or Z, then it's incumbent upon the person making that allegation to come forward with evidence of that specific intent. Who wrote what, and when?

Well, it's true that the amount of research required to back up with quotes and documents generally precludes such a detailed bibliography in a discussion forum, but Natelson has done a fine job, and reading the Federalist Papers is indeed a good way to gain a reasonable understanding of what the Federalists intended.

But, the antifederalists intended something quite different.

No, I don't think they did necessarily. They wanted something different in the beginning, and they had concerns about what the Federalists presented, but in the end they all compromised and accepted the final document because the arguments and debates during ratification convinced both sides (in sufficient numbers) to ratify the document, and a good many changes were made during that process to satisfy the concerns of the anti-Federalists, things like the Bill of Rights. In the end, the intent of the ratifiers is manifested in the document that was finally ratified.

By the same token, however, as Natelson points out, it's just as important to know what the Anti-Federalists had to say about it, particularly at the ratification convention level, because that is where the actual substantive discussions of those charged with ultimately approving what had been submitted by the Constitutional Convention took place. Therefore that is where the true understanding and intent lies.

I highly recommend Natelson's book. It illuminated a good many things for me.

Sounds great. However, Natelson too is only one man, and you still haven't explained where you get the idea that the intent of "The Founders" is supposed to control the meaning of the words in the Constitution....neither has Natelson.

It's self-evident.

It's a bedrock principle of legislative interpretation in our society, from long before the United States was created, that the intent of the legislators who wrote the law, all other things being equal, must prevail. To say otherwise is to deny the very purpose of representative government, which vests in those legislators the power to make law. If the intent of those who write the laws is unimportant, then how are laws to be interpreted or applied in any sort of rational manner that leads to a stable society. The very purpose of laws is to provide certainty to the populace and stability to society because each person can know how they are to behave within the structure of society. If the intent of those who create law, be it a King or an elected legislature is irrelevant, there is no law at all, and it's just anarchistic application of the whims and caprices of whomever is in power over another.

Of course it is also true that legislative intent is not in all cases supreme, as demonstrated by the fact that an unconstitutional law is "no law at all." There are hierarchies and an order to statutory interpretation, but in resolving ambiguities or questions about the application of any law, the courts are required to first look to the plain meaning of the words as they were commonly understood and used at the time the law was written, and if that does not resolve the ambiguity the court must also look to the intent of the legislature in writing the law, using whatever records are available to discern their intent, and rule in a manner that renders the statute both constitutional and in accordance with the intent of the legislature whenever possible. Where the two are irreconcilable, the court must construe the law so that it comports with the Constitution, even if that means going directly against the announced legislative intent. There are plenty of other nuances to judicial interpretation of laws, but legislative intent is very important to resolving such questions because it is the legislature that makes laws, not the courts, and the courts are not permitted to "legislate from the bench" because that destroys the purpose of a representative republican form of government.

[Coito ergo sum]

There is only ONE WAY to lawfully and ethically reinterpret what the Founders intended for our system of government, and that's by formally amending the document. All other "interpretations" of a "living Constitution" by any process or person is illegitimate and a violation of the compact under which the document was ratified by the states.

This is a false choice, and straw man mixed together.

First of all - there is no single "Intent of the Founders."

Well, to be more accurate, it's not the intent of the Framers that's of supreme importance, it's the intent of the Ratifiers (as the representatives of the People). They are the ones who actually voted to ratify what the Framers wrote. And insofar as the intent of the Ratifiers is concerned, it's perfectly clear that the Constitution was to be "interpreted" only by the laborious process of actually amending it, thereby giving the People, who are the ultimate authority, the opportunity to debate and decide if the new interpretation suits their needs and desires.

One, prove that.

Prove what? That the meaning of the Constitution is supposed to be construed as it was intended by the people who wrote and ratified the document? How could it be otherwise?

Easily. The meaning of the Constitution is what the words and phrases mean. The people who wrote and ratified the document are numerous. Thirty-nine people signed the Constitution, and they had widely differing views on what "freedom of speech" meant, and the extent of the establishment and free exercise clauses, and what "necessary and proper" meant, and the breadth of the Commerce Clause, etc. There is no such thing as the "Intent of the Founders" in the sense of a single, unified intent. That is a fiction. There is George Washington's "intent" and understanding of what the First Amendment meant, and how broad its protections were, and then there is Gouveneur Morris' intent and understanding...John Rutledge sure as shit did not agree with Alexander Hamilton.

It's like a law - the "intent of the Congressmen" is not determinative. The main is issue is what does the law SAY. If John Rutledge thought that Freedom of Speech meant ONLY "no prior restraints on speech" then that's what he thought it should mean - that's not necessarily what it does mean or did mean.

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Or do you mean prove that the intent was that the Constitution only be "interpreted" (perhaps I should have said "reinterpreted") through the amendment process?

That too. Plainly, interpreting the constitution does not require an amendment. Every court decision involving the Constitution, or any law, requires interpretation of that provision or law.

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In that case, it's also self-evident, otherwise the sections regarding amendment are surplusage, which violates one of the rules of legislative drafting that the Founders used at the time.

It's plainly NOT self-evident - it's plainly contrary to reality. The only way to apply the "Intent of the Founders" is to either harmonize differing intents, or to pick one person's intent over another person's intent.

And amendment is required to AMEND the constitution. It is not required to interpret a constitutional provision.

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Where do you get this perfect clarity that the "ratifiers" (which of them?) intended what you say they intended? Do you have a citation? If not, then it's just your assertion, without evidence.

I didn't say there was "perfect clarity," merely that the intent of the Founders and the Ratifiers is easily discerned by looking at their contemporary writings,

Which writings? John Rutledge's? William Paterson's?

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the records of the debates surrounding ratification, and the common usages and customs of the time.

Yes, but you never cite authority - you just declare that certain usages were common and that whatever meaning you pick was a custom of the time.

And, the record of the debates have to be carefully read -- just because someone says "I intend the first amendment to mean X, Y and Z" doesn't mean that's what it means. That guy may not have gotten his way.

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Two, no, "interpretation" means, essentially, "to find the meaning of..." -- it doesn't mean "twist" the meaning of, or create a new meaning where one doesn't exist. When you read what someone writes on a message board, you're interpreting it, because you are determining what a person means.

I'm pretty sure we're in agreement on this, I'm simply claiming that Progressives and liberals, particularly since about 1912, have been twisting, rather than interpreting. In other words, they have been striving to create NEW meanings not intended by the authors and ratifiers of the document in order to justify their own unconstitutional actions.

Sure - and so have conservatives and everyone else. John Adams thought the Alien & Sedition Acts was in accord with the First Amendment, too.

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The Supreme Court interprets the constitution every time it renders an opinion, and the Congress interprets the Constitution when it decides whether it has the power to make a particular law under Article I, section 8.

But do they interpret it correctly? That's the question before us. The answer is, since about 1912, largely "no."

I can only address specific issues. The Constitution is worded very broadly and in very general terms. Does "Commerce among the several states..." mean only physical transportation of goods and services from one state to another, or does it mean participation in an industry that has substantial effects or impact on interstate commerce? Does "Commerce among the several states..." mean a hard-and-fast carved-in-stone rule dividing "intrastate" vs. "interstate" commerce -- does it have to? What did the "Founders" thinkl

[

And, the Constitution doesn't cover everything, but the government can still do them. For example, Congress has made reams of laws concerning "immigration." It really doesn't explicitly say anything about the Congress having that authority. The closest we get is that Congress has the power "To establish an uniform Rule of Naturalization,..." Naturalization is the process of making new citizens. It has nothing to do with visas, work permits, entry and exit from the US, barring people from entering the country, green cards, and all sorts of things (all of which are decidedly non-uniform). So, from where does the federal government have the authority to control immigration to the US? Answer: not from the Constitution it doesn't. Are you suggesting that the federal government does not have the authority to control the borders?

No, because the authority to control immigration is inherent in the power to control naturalization,

Says you. But, you see, it isn't inherent in the power to control naturalization. The United States need not have the power to control who enters a given State, which are sovereign under our system as it was set up in the 18th century, and it was the States that could control which foreigners were lawfully permitted to be present in the States. Naturalization was given to the US federal government because that involved who was allowed to be a CITIZEN of what? The United States. People weren't granted naturalized citizenship of Virginia or New York -- naturalization was to become a UNITED STATES citizen. Federal.

See what you did there? You just invented something out of whole cloth. You think it makes sense that the federal government would have the power over immigration, so you just sort of declared that it has the "inherent" power. Sounds like what you accuse the Progressives of doing.

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and the "all necessary and proper" clause gives them the authority to create rules in that regard. But that power is not unlimited. Congress cannot, for example "unnaturalize" a natural-born citizen or create a non-uniform rule of naturalization.

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [Article I, Section 8], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

So, what's necessary and what is proper. William Paterson's opinion on the topic is interesting, but not determinative. The intent of a founder is not determinative.

Therefore, step one in any Constitutional analysis is to read the applicable provision(s) of the Constitution and figure out what they MEAN, not what some person or another "intended" them to mean. Often, when Madison or some other "Founder" was discussing the Constitution, they were discussing a draft, and they were discussing language different from what ultimately was ratified. So, we are hearing, quite often when reading the 18th century writings, what one "Founder" or another WANTED and was lobbying/pushing for. Not every "Founder" got the language they "intended" to be in the Constitution.

Yes and no. While it is true that no one Founder's statements on what the meaning of a provision of the Constitution is authoritative, it is the sum total of the writings and recorded discussions of the meaning and intent of the provision found in the contemporary record of both the drafters,

Where do you get that? Where does it say that the meaning of the words in the Constitution are to be interpreted in light of the "sum total of the writings and recorded discussions of the meaning and intent of the provision..." You have a source for that? It doesn't say that in the Constitution. The Constitution says what it says, and its meaning can't be vitiated or altered based on an argument relative to the "intent" of the various "Founders," can it? Isn't it true that the words are to mean what they say, not what someone "intended" them to mean?

How can you separate what the words say, and mean to say, from what the authors and those who agreed to accept the words meant them to say? [/quote]

Because what William Paterson thought the words were meant to say might not be in accord with what they actually do say.

Legislative intent is always the basic touchstone of any interpretation of any law by a court if there is any question regarding the plain meaning.

That's a highly controversial topic in the law, exactly how much legislative intent matters and where to actually find legislative intent. It is NOT a "basic touchstone." Not by a long shot. "Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation." - Antonin Scalia.

Justice Scalia laments this deficiency, attributing it to uncertainty about the basic question, "What are we looking for when we construe a statute?" He has his own answer as well as criticism for what he sees as the nebulous answers of others. Scalia makes an important distinction that explains much of his later criticism of the use of legislative history in modern courts and pigeonholes him within the broad school of "originalist" interpreters of statutory (and constitutional) interpreters. When construing a law, Justice Scalia seeks not the "subjective" intent of the legislature, but rather their "objective" intent -- "the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris." In making this distinction, Scalia echoes other prominent members of the "originalist" school. Scalia, however, attacks proponents of "legislative intent" (by whom, we gather, he means a great number of the judges currently on the bench) with vigor. Basing interpretation on "intent" is not merely misguided, it is "tyrannical," for it threatens the American ideal of "a government of laws, not of men." Moreover, "legislative intent," far from being an objective standard to which judges must conform, is in fact a amorphous jumble of evidence from which a judge can produce his own desired interpretation of the law in question. See "A Matter of Interpretation" - Antonin Scalia.

Justice Scalia calls his own interpretive philosophy "textualism," and distinguishes this term from the popular term "strict constructionism." He writes: "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Scalia cites an example of an unreasonably strict construction in Smith v. United States (1993), a recent case from which he dissented. "But," Scalia says, "while the good textualist is not a literalist, neither is he a nihilist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible." As an example of unreasonably loose construction, Scalia cites the mass of cases, beginning with Dred Scott v. Sanford, in which the Supreme Court has defended substantive liberties not mentioned within the text of the Constitution’s Due Process Clauses of the Fifth and Fourteenth Amendments.

This is necessarily so because without reliance on the intent of the drafters of the law, any ambiguity, or any broad grant of power, can be construed to mean almost anything. If we are not to rely upon what those who wrote the Constitution meant and intended, then why did they bother to write the document and have the debates in the first place? Why did they not simply say "the King decides as he pleases?"

Actually, this is not necessarily so, and clearly isn't, because the "legislative intent" school of thought is only one school of thought on the topic, and isn't one that is shared by originalists or strict constructionists or as Scalia calls it "textualists." Moreover, when you fall back on legislative intent, it is then that you can make the words mean something different than what they say.

And you are attempting to be too literal here. Obviously we do not have recordings of everything those who wrote and ratified the Constitution said and thought, but we can, and must reference what remains of the record of those deliberations in deciding what the meanings of the words they used are, and how they were understood at the time. This is the only way to discern legislative intent in deciding how to apply the broad grants of power the Constitution contains.

You could read the words written in light of what the reasonable possible range of meanings of those words. What William Paterson thought "speech" was might not have been in accord with what it really meant.

Many of the ratifiers ratified the constitution without getting everything they intended. Like any compromise document, people intend one thing, but are constrained by political realities, and vote for something different than they intend.

Correct. But you imply that we may simply disregard what they had to say about some provision because what one person wrote or is reported to have said is not authoritative. While it is true that no one Framer's or Ratifier's opinion is authoritative, and you are quite right that many people fall into this trap, we have no other choice than to look at the contemporary records that remain in order to try to discern what the consensus opinion was that caused them to write what they wrote and ratify what was written.

What other method of interpreting what someone else has written and approved would you have us use?

Us? You can use whatever you want. I'm just telling you that "intent of the founders" is not determinative of meaning, and really can't be, because there really is no such thing.

For example, I, along with many others, have argued in the past that the concept of "judicial review" of federal and state laws under the Constitution was unknown until John Marshall thought of it in Marbury v. Madison. After reading Natelson's book, I'm now convinced that I was in error. He explains that the contemporary legal thinking overwhelmingly favors judicial review of inferior laws, and that both the Federalists and anti-Federalists who discussed the jurisdiction and power of the federal courts fully understood and accepted that a federal court would have the power to overturn a state law that conflicts with the Constitution. He writes:

Nobody thinks the "concept" was unknown. The concept was well-known. What was said is that the Constitution does not grant that power to the Court. It doesn't.

Er, many people today think that Marbury v. Madison was an unconstitutional arrogation of power by the Supreme Court because the Constitution does not explicitly grant the power of judicial review. I thought so. But I'm now persuaded that I was in error, and that error was based on a lack of understanding of the well-known principles of law and governance that prevailed at the time the Constitution was written, which included judicial review and supremacy of higher law as ordinary and well-understood contemporary principles that are therefore inherently part of the proper interpretation of the Constitution.

Have you read Marbury v Madison? Apparently, whether the Court had the power was an issue that the Court itself felt it needed to resolve. If judicial review was so ordinary and normal, why would the Court have to jump through hoops to find the power?

Actually, the Founders who expressed pre-ratification opinions on the subject considered jusdicial review part of proepr judging. They did not want a statute that clashed with the Constitution to survive, and they expected judges to grant priority over such statutes to the Constitution. At the Virginia ratifying convention, for example, Anti-Federalists worried about whether the courts would be aggressive enough to strike down unconstitutional laws, while Federalists thought they would.

Americans had a centuries-old acquaintance with the idea that lower-level laws were invalid if they clashed with higher level laws. Ad British subjects, they had understood that laws passed by a colonial assembly were void if inconsistent with the colonial charter or with the Magna Carta. In the Continental Congress, a congressional committee concluded that some state laws violated the rules under which the United States and been created, and that such laws therefore "ought to be deemed void." By the time Marbury v. Madison had been decided, there had been about three dozen American court cases-- including some high-profile ones before the Constitution's ratification-- in which judicial review was applied or assumed.

But, it was controversial, at the time. It's not as if Marbury v Madison was a "ho hum - just reaffirming what is already the case, and what is so commonly thought to be true as to merely be assumed as axiomatic."

Was it controversial at the time? I know it's controversial now, but I've not seen much evidence that anybody was particularly shocked at the decision at the time. Do you have some citation to that effect?

Yes. Read the actual text of Marbury v Madison. It's actually NOT controversial now, since it's been an accepted part of SCOTUS jurisprudence for 200 years now.

It was the first time in Western history a court invalidated a law by declaring it "unconstitutional."

Hurtado v. California, 110 U.S. 516 (1884) "the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons."

The idea that courts could declare statutes void was defeated in England with the Glorious Revolution of 1688, when King James II was removed and the elected Parliament declared itself supreme. The idea of judicial invalidation of statutes continued to be known in the American colonies and in States. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.

As for the controversiality - At the time, Jefferson disagreed with Marshall's reasoning in this case, saying that if this view of judicial power became accepted, it would be "placing us under the despotism of an oligarchy." Jefferson expanded on this in a letter he wrote some 20 years later to Justice William Johnson, whom he had appointed to the court in 1804. So, some folks of fairly high stature were not pleased with it.

Thus, the true first step of Constitutional interpretation is not "What did James Madison, or Gouverneur Morris or George Wythe, or Thomas Paine, or Roger Sherman or Edmund Randolph or John Dickinson, etc. -- any number of the main contributors and signers of the Constitution thought it SHOULD mean or intended it to mean..." - the first step is what DOES it mean - what were the meanings of the words in the 18th century AS WRITTEN. If George Wythe intended that only pink fuzzy bunnies be permitted to serve as President of the US, that doesn't change what the words actually MEAN.

Interpretation = finding the meaning of the words.

I think we can agree on this, so long as it's clear that the meaning of the words is the meaning as written according to 18th century understanding of both the words and the legal principles in use at the time, not flexed to include contemporary meanings and usages.

Sure, but if we agree on that, then we agree that it has nothing to do with "intent" of one of the drafters or signers.

The key word being "one." I've never claimed that the opinion of "one" of the drafters or signers is conclusive. But combined together, the legislative record and knowledge of contemporary usage and custom, gives us the best view of what they intended as a group in drafting and ratifying the document. We really have no other choice when there are ambiguities that must be addressed about the scope of federal power than to look at all the available evidence, including the contemporary writings and records of the authors and ratifiers.

Scalia describes another choice in his textualism theory.

[Coito ergo sum]

You'll have to be more specific as to who is doing that, and in what context. Sure, I'm sure some folks distort a lot of things. That occurs in every sphere from Contitutional literalists, to original intent folks, all the way to the living document folks.

We can start with Woodrow Wilson and FDR if you like.

O.k. - start. I'd start with John Adams and the Alien & Sedition Acts, or the rights "found" in the Constitution in the Dred Scott debacle, but feel free to start wherever you like.

Frankly, most of the "intent of the Founders" folks come across to me as basically saying, "I think X is right and makes perfect sense - therefore, that must have been the collective "Intent of the Founders," since, of course, they would only do things that make perfect sense." I can't think of a time where someone has made an allegation that something or another is in accord with the "intent of the Founders" where that person has come up with any evidence of that intent - a quote - that backs it up. The closest they come is referring generally to "read the Federalist papers." Not good enough, of course. If one is making a specific allegation that "The Founders" intended X, Y or Z, then it's incumbent upon the person making that allegation to come forward with evidence of that specific intent. Who wrote what, and when?

Well, it's true that the amount of research required to back up with quotes and documents generally precludes such a detailed bibliography in a discussion forum, but Natelson has done a fine job, and reading the Federalist Papers is indeed a good way to gain a reasonable understanding of what the Federalists intended.

But, the antifederalists intended something quite different.

No, I don't think they did necessarily. They wanted something different in the beginning, and they had concerns about what the Federalists presented, but in the end they all compromised and accepted the final document because the arguments and debates during ratification convinced both sides (in sufficient numbers) to ratify the document, and a good many changes were made during that process to satisfy the concerns of the anti-Federalists, things like the Bill of Rights. In the end, the intent of the ratifiers is manifested in the document that was finally ratified.

Some of the changes, you will find, were purposefully vague, leaving matters open to dispute later, in order to give something to one side, but keep the other side happy....

By the same token, however, as Natelson points out, it's just as important to know what the Anti-Federalists had to say about it, particularly at the ratification convention level, because that is where the actual substantive discussions of those charged with ultimately approving what had been submitted by the Constitutional Convention took place. Therefore that is where the true understanding and intent lies.

I highly recommend Natelson's book. It illuminated a good many things for me.

Sounds great. However, Natelson too is only one man, and you still haven't explained where you get the idea that the intent of "The Founders" is supposed to control the meaning of the words in the Constitution....neither has Natelson.

It's self-evident.

I've already shown the error of this "self-evident" declaration in my last post. It isn't self evident.

It's a bedrock principle of legislative interpretation in our society,

Isn't. It's one theory. And, there simply is no consistent principle of legislative interpretation.

from long before the United States was created, that the intent of the legislators who wrote the law, all other things being equal, must prevail.

Incorrect. Please give your citation.

To say otherwise is to deny the very purpose of representative government, which vests in those legislators the power to make law.

Incorrect. To apply the intent of the legislature, whatever that may be, as determinative of what words mean in the text of a law is, as Scalia shows, a pathway to arbitrary application of laws to mean whatever we want them to mean.

[Seth]

To say otherwise is to deny the very purpose of representative government, which vests in those legislators the power to make law.

Incorrect. To apply the intent of the legislature, whatever that may be, as determinative of what words mean in the text of a law is, as Scalia shows, a pathway to arbitrary application of laws to mean whatever we want them to mean.

This is circular nonsense. As I said, the first resort is to the plain meaning of the words as understood when they were written, if it's still not clear what the law intends, legislative intent comes into play.

Legislative intent is supposed to be manifest in the plain language of the statute, but sometimes that doesn't happen. What other recourse is there to determine what a law is supposed to mean than to refer to those who wrote the law and the records of what they intended it to accomplish, and therefore what the language means?

You're suggesting that there is no foundation of meaning for a law (or a Constitution) at all.

Other than the plain meaning of the words, and the legislative intent of the authors, what other metric do you suggest is to be used to determine what the meaning of the words in a law (or Constitution) are?

[Warren Dew]

It was the first time in Western history a court invalidated a law by declaring it "unconstitutional."

...

The idea that courts could declare statutes void was defeated in England with the Glorious Revolution of 1688, when King James II was removed and the elected Parliament declared itself supreme. The idea of judicial invalidation of statutes continued to be known in the American colonies and in States. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.[bold mine]

You're contradicting yourself. If the doctrine of unconstitutionality had already been employed "in both State and Federal courts", Marbury v Madison was clearly not "the first time".

I know the licensing terms of wikipedia allow use of whole paragraphs without attribution, but maybe you should read them more carefully before pasting them into your posts?