Constitutional Originalism

[Perianne]

Constitutional originalism is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment.

Do you agree or disagree that originalism is the correct way to interpret the U.S. Constitution?


https://en.wikipedia.org/wiki/Originalism

[indago]

Constitutional originalism is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment.

Do you agree or disagree that originalism is the correct way to interpret the U.S. Constitution?


https://en.wikipedia.org/wiki/Originalism

There is the possibility that the Constitution could be interpreted out of existence, some parts of which have already occurred. Do you think that this is a good thing?

[Kathianne]

There is the possibility that the Constitution could be interpreted out of existence, some parts of which have already occurred. Do you think that this is a good thing?



How else would those 'conservatives' that are pushing for progressivism of one type or another, get their way?

I've read the book this article was about, but the article itself isn't long. I find the author unwittingly brings down his own argument in favor of a "Living Constitution," both in his honest approach to the strengths of the 'originalists' approach' and in really arguing to go back to the English way of governing through 'Common Law based.'

In fact, common law is and always has had a place in US legal system. What is different is the Constitution put in safeguards protecting minority rights-which includes those of ideas:

http://www.law.uchicago.edu/alumni/magazine/fall10/strauss

[Perianne]

There is the possibility that the Constitution could be interpreted out of existence, some parts of which have already occurred. Do you think that this is a good thing?

I do not think it is a good thing, thus my interest in this issue.

[Perianne]

How else would those 'conservatives' that are pushing for progressivism of one type or another, get their way?

I've read the book this article was about, but the article itself isn't long. I find the author unwittingly brings down his own argument in favor of a "Living Constitution," both in his honest approach to the strengths of the 'originalists' approach' and in really arguing to go back to the English way of governing through 'Common Law based.'

In fact, common law is and always has had a place in US legal system. What is different is the Constitution put in safeguards protecting minority rights-which includes those of ideas:

http://www.law.uchicago.edu/alumni/magazine/fall10/strauss

Interesting reading, Kathianne. I am slowly going through it. One thing I notice is his leaning towards the common law approach. For example, he says:


Originalists do not draw on the accumulated wisdom of previous generations in the way that the common law does.

If so, how would/could he possibly explain gay marriage rulings?

I find his arguments flat. I say that with the caveat that he is infinitely more knowledgeable about the law than I am. However, HE is writing about ideas and not necessarily anything concrete.

[Kathianne]

Interesting reading, Kathianne. I am slowly going through it. One thing I notice is his leaning towards the common law approach. For example, he says:


If so, how would/could he possibly explain gay marriage rulings?

I find his arguments flat. I say that with the caveat that he is infinitely more knowledgeable about the law than I am. However, HE is writing about ideas and not necessarily anything concrete.

He's not an originalist and he is making claims about those that are that aren't fully true. All modern law contains common law.

[Perianne]

He's not an originalist and he is making claims about those that are that aren't fully true. All modern law contains common law.

Including the latest rulings on gay marriage?

[Kathianne]

Including the latest rulings on gay marriage?
That particular law would be non-originalist, rather 'living Constitution' by SCOTUS. Fails on originalism regarding marriage laws being state responsibility.

[aboutime]

IMO. There is NO such thing as a Living Constitution. The founding fathers wrote it carefully, giving WE THE PEOPLE the opportunity to AMEND the document when done according to the document.

Those who want to see the constitution become extinct, or useless, are the same phony Americans who would elect either Hillary, or Bernie (the Socialist) Sanders. Both of whom know how to make Impossible promises to circumvent, and ignore the constitution while Saying whatever the Voters want....before the Elections.

[Kathianne]

IMO. There is NO such thing as a Living Constitution. The founding fathers wrote it carefully, giving WE THE PEOPLE the opportunity to AMEND the document when done according to the document.

Those who want to see the constitution become extinct, or useless, are the same phony Americans who would elect either Hillary, or Bernie (the Socialist) Sanders. Both of whom know how to make Impossible promises to circumvent, and ignore the constitution while Saying whatever the Voters want....before the Elections.

In theory you're right about the non-existence, in practice the observation fails.

[Perianne]

Constitutional originalism is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment.

Do you agree or disagree that originalism is the correct way to interpret the U.S. Constitution?


https://en.wikipedia.org/wiki/Originalism

So, back to the original question:

Is originalism the correct way to interpret the U.S. Constitution?

I agree with Antonin Scalia, yes. (Although he doesn't always follow the principle himself.)

[indago]

When the Congress began assembling the amendments of the Constitution in August, 1789, the procedure was to change the wording of the original Constitution to reflect the amendment. Roger Sherman, from Connecticut, observed that the original Constitution would be lost if they proceeded in that way, and suggested that an additional document be added to the original Constitution. This procedure was adopted, and they began structuring the Bill of Rights.

In later years, a Supreme Court Justice declared that the procedure for determining the Constitutionality of a bill would be to put the Constitutional provisions beside the bill and examine the two. With this in mind, what the founders had in mind is important in making this determination. But then, time moves on, and lifestyles and technologies progress. But that doesn't mean that the originality of the Constitution should be lost. It should be the first to be consulted.

Take for instance the gold and silver clauses of the Constitution: "No state shall ...make anything but gold and silver coin a tender in payment of debts". Although there was some opposition to this in the 1787 Convention, it was, nevertheless, written into the Constitution to end the "scourge of paper money", which always depreciated in the marketplace. The Congress then proceeded to create our monetary system of gold and silver coin to be used for exchange.

These days we have digital money: exchanges made in cyberspace between businesses and individuals far removed from each other, recorded on hard drives and "sticks". Who, in their right mind, today, would want to travel to meet face to face, with a pocketful of gold and silver coin, to make an exchange with a business?

And yet, no amendment was ever put forth to relieve the marketplace of this procedure. It was "interpreted" out of existence.

[Tyr-Ziu Saxnot]

When the Congress began assembling the amendments of the Constitution in August, 1789, the procedure was to change the wording of the original Constitution to reflect the amendment. Roger Sherman, from Connecticut, observed that the original Constitution would be lost if they proceeded in that way, and suggested that an additional document be added to the original Constitution. This procedure was adopted, and they began structuring the Bill of Rights.

In later years, a Supreme Court Justice declared that the procedure for determining the Constitutionality of a bill would be to put the Constitutional provisions beside the bill and examine the two. With this in mind, what the founders had in mind is important in making this determination. But then, time moves on, and lifestyles and technologies progress. But that doesn't mean that the originality of the Constitution should be lost. It should be the first to be consulted.

Take for instance the gold and silver clauses of the Constitution: "No state shall ...make anything but gold and silver coin a tender in payment of debts". Although there was some opposition to this in the 1787 Convention, it was, nevertheless, written into the Constitution to end the "scourge of paper money", which always depreciated in the marketplace. The Congress then proceeded to create our monetary system of gold and silver coin to be used for exchange.

These days we have digital money: exchanges made in cyberspace between businesses and individuals far removed from each other, recorded on hard drives and "sticks". Who, in their right mind, today, would want to travel to meet face to face, with a pocketful of gold and silver coin, to make an exchange with a business?

And yet, no amendment was ever put forth to relieve the marketplace of this procedure. It was "interpreted" out of existence.

Actually book debts /exchanges on paper occurred back then between trading partners. However, its true the scourge of the negatives of paper money issued to the public was addressed. Especially when banks defaulted or states manipulated to gain advantage.
One must consider buying a large parcel of land would be dangerous should the buyer have to travel with 6 or 8 thousand in gold coin to give to the seller. Hell, that amount back then was more money than most earned in a lifetime... --Tyr

[indago]

Actually book debts /exchanges on paper occurred back then between trading partners. However, its true the scourge of the negatives of paper money issued to the public was addressed. Especially when banks defaulted or states manipulated to gain advantage.
One must consider buying a large parcel of land would be dangerous should the buyer have to travel with 6 or 8 thousand in gold coin to give to the seller. Hell, that amount back then was more money than most earned in a lifetime... --Tyr

Yes, transactions occurred with Bills of Credit, where an agent would be given a Bill of Credit by a merchant to travel to a place and purchase goods from another merchant. The merchant would record this on his books, and the debt would be paid with gold and silver coin at a later date.

There was the transaction between Abraham and Ephron at Machpelah in the Bible in the Book of Genesis, where Abraham weighed out in payment "four hundred shekels of the standard recognized by merchants" for a piece of land to bury his wife.

[fj1200]

So, back to the original question:

Is originalism the correct way to interpret the U.S. Constitution?

For the most part but an originalist interpretation can't cover every question. The marriage question that was brought up is a perfect example. The Constitution doesn't define marriage so the marriage position must be interpreted based on what is there. It would be left to the states if the tenth had any effect but the Federal government chose to define interpersonal relationships and once it does that then any definition must be subject to other parts of the Constitution; the 14th as example.

[Drummond]

For the most part but an originalist interpretation can't cover every question. The marriage question that was brought up is a perfect example. The Constitution doesn't define marriage so the marriage position must be interpreted based on what is there. It would be left to the states if the tenth had any effect but the Federal government chose to define interpersonal relationships and once it does that then any definition must be subject to other parts of the Constitution; the 14th as example.

For clarification: is it your position that the Christian Church's own position on marriage has little to no bearing on marriage itself ? It has no part to play in determining the proper nature of marriage ?

[revelarts]

if some form of "originalism" is not the standard then ANY brand of interpretation is as valid as any other.

In my thinking... which may be too simple for some... it's a lot like your parents house rules and commands.
When the Mom tells kids to, "go to bed", there's an implied ORIGINAL intent, and customary interpretation based on prior use, as well as meaning of the words themselves. But the kids could claim various meanings to the phrases all night long and the stronger or more convincing ones could determine that whatever Mom meant waaaay back then, may have been one thing but "tonight" it clearly really means that they all should "VISIT the bed" then they can do as they pleased. Or it means that they should just verbally acknowledge the bed as a place of rest. Or they could determine that Bed is just an outdated notion. Or they could realize that GO TO really doesn't apply anymore at all because of vital NEW factors unknown to mom... like TV and video games.

Whatever they do, "go to bed", means whatever they WANT IT to mean. The natural use of words, language and normal communication have NO real power at all. The words are just place holders for them to "interpret" whatever they like, not a real law or contract.

[indago]

if some form of "originalism" is not the standard then ANY brand of interpretation is as valid as any other.

In my thinking... which may be too simple for some... it's a lot like your parents house rules and commands.
When the Mom tells kids to, "go to bed", there's an implied ORIGINAL intent, and customary interpretation based on prior use, as well as meaning of the words themselves. But the kids could claim various meanings to the phrases all night long and the stronger or more convincing ones could determine that whatever Mom meant waaaay back then, may have been one thing but "tonight" it clearly really means that they all should "VISIT the bed" then they can do as they pleased. Or it means that they should just verbally acknowledge the bed as a place of rest. Or they could determine that Bed is just an outdated notion. Or they could realize that GO TO really doesn't apply anymore at all because of vital NEW factors unknown to mom... like TV and video games.

Whatever they do, "go to bed", means whatever they WANT IT to mean. The natural use of words, language and normal communication have NO real power at all. The words are just place holders for them to "interpret" whatever they like, not a real law or contract.

"When I use a word, it means exactly what I want it to mean — no more and no less." — Humpty Dumpty

[fj1200]

For clarification: is it your position that the Christian Church's own position on marriage has little to no bearing on marriage itself ? It has no part to play in determining the proper nature of marriage ?

The subject is Constitutional Originalism. The question as it pertains to this thread IMO is unions between two people, aka marriage, as defined by the State and how the Constitution affects that.

[Little-Acorn]

Constitutional originalism is a principle of interpretation that views the Constitution's meaning as fixed as of the time of enactment.

Do you agree or disagree that originalism is the correct way to interpret the U.S. Constitution?


https://en.wikipedia.org/wiki/Originalism

Of course.

If we don't keep the meaning the same as what it was when written, we lose the advantages of a written Constitution.

Why bother writing it down in the first place if we're just going to assume it doesn't mean what the writers wanted it to mean?

[Gunny]

He's not an originalist and he is making claims about those that are that aren't fully true. All modern law contains common law.

One could argue the reality of common law vs the ideal. The reality is, common law applies less and less in this nation as we cater to the tyranny of the minority based on juris prudence -- a judge legislating from the bench. Common law goes out the window where the tyranny of the minority begins. We do NOT have equal rights.

Common law reflects the will of the majority. Case law caters to the minority, based on political agenda rather than right and wrong.

I'm afraid it's too late to turn it back. The weak misuse words to disenfranchise the people who created the law, and were willing to use common sense when enforcing it.