How should Constitutional question be defined/interpreted?

How should Constitutional questions be defined/interpreted?

1) By what was written in the Constitution.
2) By what the writers meant when they wrote the Constitution.
3) Both, what they wrote and the deeper meaning based on other comments and writings.
4) Either/or, based on what my own bias says depending on which debate I'm in at the moment.
5) The lean of the Supreme Court at any given moment.
6) Other. (Please explain)

Example: The Establishment Clause / Free Exercise Clause of the First Amendment. They say, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...".

Do we base interpretation based on what was written? What was written seems clear, yet we still have raging debates over it to this day, so maybe it's not so clear at all. Or, do we define it based on other comments and writings of the framers and include things like the "...wall of separation between church and state..." aspect as Thomas Jefferson wrote in a letter in 1802. Note that the First Amendment doesn't actually say anything about separation, yet many believe that it is included in the intent of the Establishment Clause.

This question could also be applied to most other Constitutional questions as well, i.e. what is a "militia", what is reasonable search and seizure, and so on. I just chose this one for example purposes.

How do YOU believe the Constitution should be defined and interpreted?

There are too many "back door" methods used to grant additional federal government powers; for example, using the withholding of federal highway funds to enact national speed limit laws (not a consitutional federal power) that must be enforced at state expense or the withhholding of federal education funds (not a federal constitutional power) to force state/local schools to abide by federal wishes of all sorts.

People just interpret the constitution by what results they want and then choose a philosophy to suit that desire

There really is no best way in any objective sense

radcen said:

How should Constitutional questions be defined/interpreted?

Click to expand...

I don't know how to vote because, imo, at least three of your choices are applicable in regards to constitutional interpretation.

1) By what was written in the Constitution. definitely this one.
2) By what the writers meant when they wrote the Constitution. what the words meant at the time.
3) Both, what they wrote and the deeper meaning based on other comments and writings. the Federalist papers are a good example which the Supreme Court has referred to numerous times.

The University of Missouri-Kansas City offers these options, in which case I would be a combination of a Textualist and Intentionalist.

Textualist: An originalist who gives primary weight to the text and structure of the Constitution. Textualists often are skeptical of the ability of judges to determine collective "intent."

Intentionalist: An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.

Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision "wrong" on originalist terms because it promotes stability or in some other way promotes the public good.

Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.
Theories of Constitutional Interpretation

Click to expand...

ttwtt78640 said:

There are too many "back door" methods used to grant additional federal government powers; for example, using the withholding of federal highway funds to enact national speed limit laws (not a consitutional federal power) that must be enforced at state expense or the withhholding of federal education funds (not a federal constitutional power) to force state/local schools to abide by federal wishes of all sorts.

Click to expand...

Agreed. This is why I think the 17th Amendment was a huge mistake. Direct popular election of Senators sounds good, but it took away the balance of power in Congress. The states have no say anymore, and as such Congress is ready to appeal to the people and grant them their poorly thought out desires and there's is no one to stand up and say, "No, the states shouldn't have to pay for this.".

tacomancer said:

People just interpret the constitution by what results they want and then choose a philosophy to suit that desire

Click to expand...

Based on what I see many people do, here at DP and elsewhere, I believe this is true. Too many wiull cherry-pick whichever standard suits their own opinion.

We should stick with the written Constitution primarily, and where there is any question we should consider the Founder's intent based on their relevant other writings and documents of the time.


All infringements on individual liberty should be considered on the basis of Strict Scrutiny.

Anyone here actually major in Political science besides me?

It might have been in the first class that the professor said:

The Constitution means what the Supreme Court says it means.

Someone had perform that task, and if the principle of Separation of Powers is to have any reality then the interpreter should be the Supreme Court, else the legislative and executive branches would have too much power.

It has been so since the Supreme court gave itself the power of judicial review in Marbury v Madison (1803)- 211 years ago. The legislative and executive branches have complied with this ruling (often while protesting loudly) since Day One.

I hope it always remains so in deference to the principle of Separation of Powers. There are ways to get around a SC ruling, but they are difficult, as they should be if the judiciary is to a have truly independent power.

We sure can't have a few thousand of so loudmouthed bellyachers ruling on constitutionality like we do here at Debate Politics!

tacomancer said:

People just interpret the constitution by what results they want and then choose a philosophy to suit that desire

There really is no best way in any objective sense

Click to expand...

That makes the constitution essentially meaningless and makes whatever is deemed to be "important" (popular at the moment) into a new federal power without need to amend the constitution. For example, it took constitutional amendment(s) to nationally ban/restore the recreational drug alcohol yet no such action to nationally ban many other recreational drugs.

ttwtt78640 said:

That makes the constitution essentially meaningless and makes whatever is deemed to be "important" (popular at the moment) into a new federal power without need to amend the constitution. For example, it took constitutional amendment(s) to nationally ban/restore the recreational drug alcohol yet no such action to nationally ban many other recreational drugs.

Click to expand...

Its what I see people doing here all the time

On all sides

USViking said:

Anyone here actually major in Political science besides me?

It might have been in the first class that the professor said:

The Constitution means what the Supreme Court says it means.

Someone had perform that task, and if the principle of Separation of Powers is to have any reality then the interpreter should be the Supreme Court, else the legislative and executive branches would have too much power.

It has been so since the Supreme court gave itself the power of judicial review in Marbury v Madison (1803)- 211 years ago. The legislative and executive branches have complied with this ruling (often while protesting loudly) since Day One.

I hope it always remains so in deference to the principle of Separation of Powers. There are ways to get around a SC ruling, but they are difficult, as they should be if the judiciary is to a have truly independent power.

We sure can't have a few thousand of so loudmouthed bellyachers ruling on constitutionality like we do here at Debate Politics!

Click to expand...

That addresses only the separation of powers within the federal government itself but does little (or nothing) to preserve the power (constitutional rights?) of the citizens or of the states which are often said, by the federally appointed court alone, to lack "standing' to file suit in that (or any) federal court.

ttwtt78640 said:

That addresses only the separation of powers within the federal government itself...

Click to expand...

Incorrect. You seem to have missed a part, somehow. Here it is again:

The Constitution means what the Supreme Court says it means.

ttwtt78640 said:

but does little (or nothing) to preserve the power (constitutional rights?) of the citizens or of the states which are often said, by the federally appointed court alone, to lack "standing' to file suit in that (or any) federal court.

Click to expand...

The "power (constitutional rights)" of the citizens and the states are what the Supreme Court says they are, Bub.
The Constitution does give Congress the authority to curtail powers not spelled out explicitly in the Constitution,
but I have never heard a case where Congress did so, and I wonder if there has ever been such a case, a major case,
in the nation's history. Why I do not know, given the perpetual screeching that is directed at the Federal Courts
from the Right, from the Left, and and from the Center.

USViking said:

Incorrect. You seem to have missed a part, somehow. Here it is again:

The Constitution means what the Supreme Court says it means.

The "power (constitutional rights)" of the citizens and the states are what the Supreme Court says they are, Bub.
The Constitution does give Congress the authority to curtail powers not spelled out explicitly in the Constitution,
but I have never heard a case where Congress did so, and I wonder if there has ever been such a case, a major case,
in the nation's history. Why I do not know, given the perpetual screeching that is directed at the Federal Courts
from the Right, from the Left, and and from the Center.

Click to expand...

The SCOTUS often refuses to even rule on such basic constitutional matters as "the right of the people to keep and bear arms shall not be infringed". The existance of "may issue" handgun carry permits by the (state) government is clearly seen as an infringement of the right to bear arms despite the fact that the federal gov't has no law denying my right to keep (own) one. What use is merely keeping a handgun that may not be legally carried for personal defense? One's individual constitutional rights surely must exist outside of their home or they are of little value at all.

Supreme Court declines to review New Jersey

If nothing compels the SCOTUS to make a ruling on a constitutional question (matter?) then the constitution means whatever a legislature passes is the law of the land and may not be challenged.

ttwtt78640 said:

The SCOTUS often refuses to even rule on such basic constitutional matters as "the right of the people to keep and bear arms shall not be infringed". The existance of "may issue" handgun carry permits by the (state) government is clearly seen as an infringement of the right to bear arms despite the fact that the federal gov't has no law denying my right to keep (own) one...

Supreme Court declines to review New Jersey

Click to expand...

ttwtt78640 said:

What use is merely keeping a handgun that may not be legally carried for personal defense?...

Click to expand...

Being able to use it in your home strikes me as a lot better than being able to use it nowhere.

And sorry- The SC has ruled and you must comply if you live in NJ: it is up the SC how much difference to allow the states.

ttwtt78640 said:

One's individual constitutional rights surely must exist outside of their home or they are of little value at all.

Click to expand...

Hm- so it is of no value being able to beat your meat inside your home unless you can also beat it on any old park bench? Hm.

ttwtt78640 said:

If nothing compels the SCOTUS to make a ruling on a constitutional question (matter?)...

Click to expand...

The SC has original jurisdiction (look it up) in only very few situations. Otherwise it is an appeals court with complete freedom the choose what appeals to hear and what appeals not to hear.

ttwtt78640 said:

then the constitution means whatever a legislature passes is the law of the land and may not be challenged.

Click to expand...

The NJ law was challenged. By refusing to hear the case the SC ruled in favor of the state (it sure as hell does not always do so!). The challengers lost. Tough. Move to Georgia if you can't live with it, *ssholes.