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

For discussion and debate about anything. (Not a roleplay related forum; out-of-character commentary only.)

What method do you prefer when interpreting laws and legal documents?

Strict Constructionism
3
25%
Textualism
6
50%
Structuralism
0
No votes
Originalism
3
25%
Doctrinalism
0
No votes
Balancing
0
No votes
 
Total votes : 12

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Lavan Tiri
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Posts: 6953
Founded: Feb 18, 2014
Democratic Socialists

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

Postby Lavan Tiri » Fri Jul 10, 2020 10:54 pm

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?
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Big Jim P
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Inoffensive Centrist Democracy

Postby Big Jim P » Fri Jul 10, 2020 11:11 pm

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.

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Free Federal States
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Posts: 58
Founded: Jun 23, 2020
New York Times Democracy

Postby Free Federal States » Fri Jul 10, 2020 11:16 pm

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.
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Nobel Hobos 2
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Founded: Dec 04, 2019
Civil Rights Lovefest

Postby Nobel Hobos 2 » Sat Jul 11, 2020 5:15 am

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.
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Northern Davincia
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Founded: Jun 10, 2014
Inoffensive Centrist Democracy

Postby Northern Davincia » Sat Jul 11, 2020 8:09 am

Nobel Hobos 2 wrote: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.
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Ethel mermania
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Father Knows Best State

Postby Ethel mermania » Sat Jul 11, 2020 8:11 am

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.
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Northern Davincia
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Inoffensive Centrist Democracy

Postby Northern Davincia » Sat Jul 11, 2020 8:43 am

Ethel mermania wrote: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.
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Kowani
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Posts: 22272
Founded: Apr 01, 2018
Democratic Socialists

Postby Kowani » Sat Jul 11, 2020 8:46 am

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.
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Galloism
Khan of Spam
 
Posts: 65735
Founded: Aug 20, 2005
Father Knows Best State

Postby Galloism » Sat Jul 11, 2020 8:52 am

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.
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Greed and Death
Khan of Spam
 
Posts: 51921
Founded: Mar 20, 2008
Compulsory Consumerist State

Postby Greed and Death » Sat Jul 11, 2020 10:26 am

Lavan Tiri wrote: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.
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Rojava Free State
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Posts: 19432
Founded: Feb 06, 2018
Ex-Nation

Postby Rojava Free State » Sat Jul 11, 2020 10:28 am

Freedom of speech means I can do whatever I want.

Why are you booing me? I'M RIGHT!
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Gravlen
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Founded: Jul 01, 2005
Father Knows Best State

Postby Gravlen » Sat Jul 11, 2020 11:09 am

Pffft, common law. :lol:
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Bear Stearns
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Founded: Dec 02, 2018
Capitalist Paradise

Postby Bear Stearns » Sat Jul 11, 2020 11:26 am

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.
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Northern Davincia
Post Marshal
 
Posts: 16126
Founded: Jun 10, 2014
Inoffensive Centrist Democracy

Postby Northern Davincia » Sat Jul 11, 2020 11:32 am

Gravlen wrote:Pffft, common law. :lol:

Get this wretched phrase out of the English vocabulary!
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Conserative Morality wrote:"Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Hoppe."

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Rojava Free State
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Posts: 19432
Founded: Feb 06, 2018
Ex-Nation

Postby Rojava Free State » Sat Jul 11, 2020 12:19 pm

Bear Stearns wrote: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.
Last edited by Rojava Free State on Sat Jul 11, 2020 12:20 pm, edited 1 time in total.
Rojava Free State wrote:Listen yall. I'm only gonna say it once but I want you to remember it. This ain't a world fit for good men. It seems like you gotta be monstrous just to make it. Gotta have a little bit of darkness within you just to survive. You gotta stoop low everyday it seems like. Stoop all the way down to the devil in these times. And then one day you look in the mirror and you realize that you ain't you anymore. You're just another monster, and thanks to your actions, someone else will eventually become as warped and twisted as you. Never forget that the best of us are just the best of a bad lot. Being at the top of a pile of feces doesn't make you anything but shit like the rest. Never forget that.


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