Interpretation of the U.S. Constitution (and other laws)

[Lavan Tiri]

This has been on my mind recently, mostly due to Supreme Court Justice Neil Gorsuch's joining with SCOTUS' liberal faction to rule in favor of Native groups claiming much of Eastern Oklahoma as Native land.

Justice Gorsuch, in his opinion, stated that the original text of the treaties written between Congress and the Natives does not indicate that the land be ceded back to the U.S. at some point, and that no laws or treaties have been made since to change this. His argument was the same as the one Antonin Scalia used many times: the plain text of the document (whether a treaty, a law, or the Constitution) is what matters, not the intent of those writing it.

There are several schools of thought regarding the interpretation of the law by courts, and I don't have the energy to describe them all, so I'll just linky-link to Wikipedia.

The interpretation I, personally, have always favored is textualism--the same as Justice Gorsuch and the dead Antonin Scalia, who I disagree(d) with on a great deal of other things. Especially when evaluating the Constitution, you cannot pour over millions of journals, letters, speeches, et cetera, to try and discern what the Founders meant. What they meant doesn't matter, it's what they wrote that counts.

This is why I find the traditional Democratic/liberal argument about the 2nd Amendment, "the Founders didn't live in a world with AR-15s and Desert Eagles!" to not hold water: it doesn't matter what kind of arms, you've got the right to bear them (along with the sidebar of "well-regulated militia", which I believe does allow Congress a certain degree of power to, well, regulate the sale, etc, of guns). But anyway, I'm rambling.

What's your take?

[Big Jim P]

The plain text is the only important aspect. Interpretation of plain text (data etc.) always adds another level of bias, and often is used to support the interpreters personal agendas and biases.

[Free Federal States]

Yea I agree. It is impossible to see the mind of a living person. It is more impossible to see the mind of a dead person. We will never know what the founders thought except by the words they wrote down, and so that’s what should be followed.

[Nobel Hobos 2]

Textualism is OK for schoolchildren, but if you use to try to predict how SCOTUS will rule (or to explain how it ruled in the past) you will find it pitifully thin. Learning the constitution is like learning laws, it's just the beginning, and you need to learn precedent cases to know what's going on.

[Northern Davincia]

Textualism is OK for schoolchildren, but if you use to try to predict how SCOTUS will rule (or to explain how it ruled in the past) you will find it pitifully thin. Learning the constitution is like learning laws, it's just the beginning, and you need to learn precedent cases to know what's going on.

If the precedent is unjust, it is better to ignore it. Textualism is the ideal method of interpretation.

[Ethel mermania]

Strict constructionalist. The words have plain meaning. The constitution is not a big ball of fluffy goodness.

I would probably support a revolution to restore the rightful place of the document to American law, with an amendment that the words mean what they say and the courts must interpret it as such.

[Northern Davincia]

Strict constructionalist. The words have plain meaning. The constitution is not a big ball of fluffy goodness.

I would probably support a revolution to restore the rightful place of the document to American law, with an amendment that the words mean what they say and the courts must interpret it as such.

Words have no enforcing power themselves, which is why the courts have been profoundly wrong before.

[Kowani]

I feel like mentioning that Scalia was an originalist, a school of thought that said you were supposed go figure out what the founders thought.

[Galloism]

I lean towards a textual approach (what do the words mean together as a common person would understand them), but I’m not a devotee.

I feel a textual approach in general is important to the doctrine of separation of powers. If congress bungles writing a law, it’s up to congress to fix it. If an agency regulation is absurd applied to reality, but not the law it’s based on, it’s up to the agency or congress to fix it. The court shouldn’t be “repairing” the mistakes of other branches.

[Greed and Death]

This has been on my mind recently, mostly due to Supreme Court Justice Neil Gorsuch's joining with SCOTUS' liberal faction to rule in favor of Native groups claiming much of Eastern Oklahoma as Native land.

Justice Gorsuch, in his opinion, stated that the original text of the treaties written between Congress and the Natives does not indicate that the land be ceded back to the U.S. at some point, and that no laws or treaties have been made since to change this. His argument was the same as the one Antonin Scalia used many times: the plain text of the document (whether a treaty, a law, or the Constitution) is what matters, not the intent of those writing it.

There are several schools of thought regarding the interpretation of the law by courts, and I don't have the energy to describe them all, so I'll just linky-link to Wikipedia.

The interpretation I, personally, have always favored is textualism--the same as Justice Gorsuch and the dead Antonin Scalia, who I disagree(d) with on a great deal of other things. Especially when evaluating the Constitution, you cannot pour over millions of journals, letters, speeches, et cetera, to try and discern what the Founders meant. What they meant doesn't matter, it's what they wrote that counts.

This is why I find the traditional Democratic/liberal argument about the 2nd Amendment, "the Founders didn't live in a world with AR-15s and Desert Eagles!" to not hold water: it doesn't matter what kind of arms, you've got the right to bear them (along with the sidebar of "well-regulated militia", which I believe does allow Congress a certain degree of power to, well, regulate the sale, etc, of guns). But anyway, I'm rambling.

What's your take?

Gorsuch and Scalia method of interpreting the law including the Constitution begins with # of assumptions
1. That the passage of a law is a public act.
2. The law is part of the social contract between the people and their government.
3. So long as the system of law presents a means to be changed that is the manner in which change should occur.

Using those assumptions you would very easily adopt the public meaning at the time of passage of law or constitutional amendment.

[Rojava Free State]

Freedom of speech means I can do whatever I want.

Why are you booing me? I'M RIGHT!

[Gravlen]

Pffft, common law.

[Bear Stearns]

You should generally in good faith assume the words in the Constitution mean what they say, otherwise they'll mean whatever you want them to mean.

[Northern Davincia]

Pffft, common law.

Get this wretched phrase out of the English vocabulary!

[Rojava Free State]

You should generally in good faith assume the words in the Constitution mean what they say, otherwise they'll mean whatever you want them to mean.

Right to bare arms. I don't know man, I think if we aren't strict about that then there could be alot of problems.

I mean what if someone takes it seriously and starts baring hundreds of arms? Gonna have graveyards across the state being dug up by an unknown arm thief and we won't know where to find him, but in some house somewhere he'll be sitting in his basement surrounded by their limbs, baring arms.