29 March 2008

A Brief Note On Constitutional Interpretation

This isn't a law blog or a Supreme Court specific blog. We don't pretend to be experts on either of those topics. Therefore, we opine on judicial philosophy with a certain degree of humility. Our opinion derives from our conservative, traditionalist background.

As a historian, we have a respect for primary source documents. They are the tools of our trade. From them we try to construct a humble narrative--one that attempts to get at the "true" history while allowing for difference of opinion on meaning.

When it comes to the Constitution, a document with which we are familiar and about whose history we know a little, we give it the utmost respect. Sure, it had its flaws--slavery foremost among those--but it is still a landmark, awesome, and foundational document.

Unlike any other prior founding and many since, it was adopted by the consent of the people and conceived by their representatives. From it flow all of our laws and the legitimacy of our government.

As the primary law of the United States of America, the Constitution, we believe, has primacy over all other laws--whether created by Congress, decreed by Executive Order or instituted by Supreme Court fiat. We believe that all government officials and all other laws must derive from the powers, authorities, and procedures it describes.

Thus, in considering a judicial philosophy--especially for the Supreme Court--we believe that they should take for guidance first the Constitution and then American legal precedence. In trying to determine originalism or original intent or a strict constructionist view of the Constitution, Justices and judges should look to three sources:

First, the intent of the Founders, inasmuch as it can be discerned from the primary source documents (letters, journals, notes) related to its creation.

Second, the understanding of the ratifying masses. There exist newspapers, pamphlets and transcripts of debates about the Constitution during the campaign for ratification. Judges can get at how a given section of the Constitution was understood by the people who ratified it.

Third, a reasonable interpretation of the text itself. We think legal scholars call this textual originalism.

From these three, not necessarily in that order, should derive a reasonable understanding of the Constitution. It is true that American jurisprudence harks to English common law, but unlike the English legal system, we have a written Constitution with holds primacy over the opinion of any given judge.

We believe that strict Constitutional interpretation is far superior to the judge or justice who makes law of their own morals or personal opinion. The Founders outlined a process whereby the Constitution could be changed by democratic process. Within the framework of the Constitution, laws which are not at odds with the Constitution can be created. Laws created by these processes have the virtue of common consent either by the citizens of the United States or their representative officials. Again, this is, in our opinion, far superior to the legal codification of personal opinion by judicial activists. Unable to persuade a large enough majority to adopt their measure or view through democratic process--Congress or Constitutional Amendment--these groups instead impose their views through what amounts to judicial tyranny.

We understand that even our favored judges do not always follow an "originalist" or strict interpretation of the Constitution. Just because they fail to do so does not invalidate the philosophy. And, with the collection and digitization of Constitutionally related primary source documents through Consource, understanding and interpretation of the Constitution is becoming easier and more accessible to everyone.

If you have tips, questions, comments, suggestions, or requests for subscription only articles, email us at lybberty@gmail.com.


Uptown Girl said...

"slavery foremost among those0--"

Please delete the extra 0 found herein. Did you think I would let it slip?

And for the record, I agree with you.

Spikers said...
This comment has been removed by the author.
Spikers said...

1. Please define "judicial activists."

2. Ours is a common law jurisprudence. Judicial precedent is law. When constitutional questions arise, judges decide them by interpreting the Const. These decisions then become binding law (the extent of their authority depends on the court). It is impossible to interpret the Constitution without reference to these binding judicial decisions (doctrine of stare decisis).

3. Regarding slavery, I am surprised that you did not adopt Frederick Douglas's strict constructionist/semi-originalist take on the subject.
For example, Frederick Douglas stated, “I ... deny that the Constitution guarantees the right to hold property in man.” Frederick Douglass, Speech, The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery?, in 2 The Life and Writings of Frederick Douglass: Pre-Civil War Decade, 1850-1860, supra note 3, at 468. See also Frederick Douglass, Position of the Government Toward Slavery, in 3 The Life and Writings of Frederick Douglass: Pre-Civil War Decade, 1850-1860, supra note 3, at 104, 108 (Douglass states that “[i]n a moral and humane point of view, the conduct of our Government towards the few slaves coming within their power, would be a disgrace to savages.”

Between 1849 and 1860, Frederick Douglass switched his views on whether the Constitution represented a pro-slavery document. In 1849, the progressive Douglass believed “as I have ever ..., that the original intent and meaning of the Constitution (the one given to it by the men who framed it, those who adopted, and the one given to it by the Supreme Court of the United States) makes it a pro-slavery instrument - such ... [as] one ... I cannot bring myself to vote under, or swear to support.” Frederick Douglass, The Constitution and Slavery, in 1 The Life and Writings of Frederick Douglass: Early Years, 1817-1849 352-53 (Philip S. Foner ed., 1950). In a second statement in 1849, Douglass stated, “What ... we would be understood to mean now, is simply this-that the Constitution of the United States, standing alone, and construed only in the light of its letter, without reference to the opinions of the men who framed and adopted it, or to the uniform, universal and undeviating practice of the nation under it, from the time of its adoption until now, is not a pro-slavery instrument.” Id. at 361-62. Here, Douglass, without reference to the opinions of the slaveholders who would control the states in which slavery was practiced, rejected the real subtext of the Framers. In a formalistic manner, Douglass advanced a view that the authority to enslave was beyond the power of the states to impose under the “letter” of the Constitution.

[see link for text of his speech].

Anonymous said...

May one who does not hold a Ph.D. in the field of history correctly refer oneself as a historian?

Barring recognition as such from the larger professional body of historians, I don't believe this form of self-identification is appropriate.