Alan Keyes and "Declarationism"

[John Kilduff]

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In my opinion we don't need a SCOTUS to tell us what the document means. The average well-read U.S. citizen's interpretation is just fine...

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What happens when two well-read U.S. citizens (e.g., me and Alan Keyes) disagree on what the document means?

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Legislatures could vote on the proper interpretation for the specific matter under their jurisdiction, or a referendum could be used to vote on the proper interpretation of the specific matter for the jurisdiction.

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Also, how well-read do you have to be to have an opinion? [img]/images/graemlins/smile.gif[/img]

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A merely passable Verbal SAT score could be the only requirement: demonstrating a very basic comprehension of written English. Anyone who can understand English can understand most of the Constitution. This is a different matter than are questions regarding some ambiguities.

I think voting on the meaning of the Constitution as applied to specific matters (voting either by legislature or by referendum) would be a fairer method than allowing nine appointed lifetime justices to make binding interpretive rulings against which there is no external recourse.

The government, after all, is supposed to be by the people and of the people.

[qwnu]

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Legislatures could vote on the proper interpretation for the specific matter under their jurisdiction, or a referendum could be used to vote on the proper interpretation of the specific matter for the jurisdiction.
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I think voting on the meaning of the Constitution as applied to specific matters (voting either by legislature or by referendum) would be a fairer method than allowing nine appointed lifetime justices to make binding interpretive rulings against which there is no external recourse.

The government, after all, is supposed to be by the people and of the people.

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I think there are good reasons that legislatures don't interpret the constitution, and allowing them to rule on the constitutionality of their own legislation would lead to all kinds of potential abuses. Checks and balances and all that.

I think allowing the general public to vote on matters of constitutional interpretation also seems fraught with danger. I don't want public opinion determining the correct interpretation of the 1st amendment. Or the 4th. Or the 5th. Or the 14th. Conservatives would be equally unhappy if we put the meaning of the 2nd amendment up to a vote.

Should Congress be able to pass a law that says police don't need a warrant to search the home of a Muslim citizen suspected of a crime? They could "interpret" this to be within the bounds of the 4th amendment. It might even pass a referendum. I don't think preventing this type of "tyranny fo the majority" via judicial oversight is necessarily at odds with a government "by the people."

[John Kilduff]

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Legislatures could vote on the proper interpretation for the specific matter under their jurisdiction, or a referendum could be used to vote on the proper interpretation of the specific matter for the jurisdiction.
...
I think voting on the meaning of the Constitution as applied to specific matters (voting either by legislature or by referendum) would be a fairer method than allowing nine appointed lifetime justices to make binding interpretive rulings against which there is no external recourse.

The government, after all, is supposed to be by the people and of the people.

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I think there are good reasons that legislatures don't interpret the constitution, and allowing them to rule on the constitutionality of their own legislation would lead to all kinds of potential abuses. Checks and balances and all that.

I think allowing the general public to vote on matters of constitutional interpretation also seems fraught with danger. I don't want public opinion determining the correct interpretation of the 1st amendment. Or the 4th. Or the 5th. Or the 14th. Conservatives would be equally unhappy if we put the meaning of the 2nd amendment up to a vote.

Should Congress be able to pass a law that says police don't need a warrant to search the home of a Muslim citizen suspected of a crime? They could "interpret" this to be within the bounds of the 4th amendment. It might even pass a referendum. I don't think preventing this type of "tyranny fo the majority" via judicial oversight is necessarily at odds with a government "by the people."

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I see those points too, and there indeed exist significant drawbacks to what I am suggesting, but there are also significant drawbacks to the current system of total SCOTUS power.

I am reaching the conclusion that it would be preferable to allow States to vote on Constitutional interpretations as pertains to specific applications within their jurisdictions, as opposed to having nine wise ones decide such things for every State in the Union with no external recourse permitted. If two States decide to interpret differently on similar matters, well, you may have a choice. Under the current system there is no choice or recourse whatsoever.

I've also been losing faith in the ability of SCOTUS to determine such important and pivotal points as the Commerce Clause. I am convinced that the average citizen or even average legislator would come to a more sensible interpretation than the overreaching interpretation now accorded legal status in regard to the Commerce Clause. The now-established interpretation has imbued the federal government with unprecedented and far-ranging powers. And there is no recourse except the same court that made that interpretation in the first place.

I am coming also to the conclusion that I trust the judgment and interpretations of average American more than I trust the judgment of the wise ones on SCOTUS. Even if you do not agree, I would guess you agree that the system of checks and balances as implemented has produced highly flawed results?

Did you know that there was no original provision for a SCOTUS-type body to rule on Constitutionality? Given the plain language in which the document is mostly written, I think the intent was probably other than to relegate binding interpretation to an elite and unelected group over all the States.

I do see other sides of the coin and counterarguments, some of which are along lines you mentioned. I'm just saying that on balance I am coming to believe that a less centralized and less closed or unassailable system for determining interpretation would probably be superior.

If you think about it, the judiciary now appears to have become the most powerful of all three branches of government, and I highly doubt that that was original intent either.

I've also been coming to greatly distrust the wisdom and judgment of SCOTUS on various points and cases, and think that a more populist system for interpretation of the Constitution would probably result in more accurate, less convoluted, and less harmful interpretations. I agree that it would also inevitably result in bad interpretations in certain jurisdictions, but again, some choice (geographically) is generally better than no choice at all and no recourse.

Thanks again for reading and for your responses.

[qwnu]

An interesting and thoughtful analysis, and I'll have to think more about it.

My only immediate reaction is to the notion of "no recourse whatsoever". My (admittedly limited) understanding is that there certainly is a recourse to bad jurisprudence at the SC level. It's just that this recourse operates on the scale of decades rather than months and years, and this is probably a good thing, given how fickle and easily manipulated people can be.

Not that "the people" shouldn't have the power. But I can appreciate the reasons they're (we're) not allowed to exercise it directly on a day-to-day basis.

[andyfox]

The Founders didn't . . . foresee or ask for a future SCOTUS to rule on its meaning."

Edmund Randolph: "The essential principles of the Constitution . . . ought to be accomodated [sic] to times and events."

James Madison, Federalist #37: "All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."

Madison again: "In the ordinary course of government, . . . the exposition of the laws and Constitution evolves upon the judicial."

Hamilton, Federalist #22: "The true import" [of treaties and laws that constitute the supreme law of the land must] "be ascertained by judicial determination."

The country was deeply divided during the ratification controversy. The founders who remained active in national politics divided intensely on one constitutuioanl issue after another.

[Borodog]

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The framers didn't have a secretary recording their deliberations. They proceedings were conducted in secret.

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We do, however, have the notes on the process made by James Madison.

[Borodog]

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James Madison, Federalist #37: "All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."

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You should quote more post-ratification Madison. [img]/images/graemlins/wink.gif[/img]

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Madison again: "In the ordinary course of government, . . . the exposition of the laws and Constitution evolves upon the judicial."


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"I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can he contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments. The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point."

[andyfox]

Which were not published until 1840. If Madison felt the deliberations of the Convention were critical in assessing "original intent," he would have published them. He specifically said, "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character." Not once during his long career as a congressman, party leader, secretary of state, or President did Madision rely on the authority of his Notes.

[John Kilduff]

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The Founders didn't . . . foresee or ask for a future SCOTUS to rule on its meaning."

Edmund Randolph: "The essential principles of the Constitution . . . ought to be accomodated [sic] to times and events."

James Madison, Federalist #37: "All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."

Madison again: "In the ordinary course of government, . . . the exposition of the laws and Constitution evolves upon the judicial."

Hamilton, Federalist #22: "The true import" [of treaties and laws that constitute the supreme law of the land must] "be ascertained by judicial determination."

The country was deeply divided during the ratification controversy. The founders who remained active in national politics divided intensely on one constitutuioanl issue after another.

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I understand what you're saying, and that there was much division and debate. I don't think the Founders determined that such debate would best ultimately be determined bindingly in the courts, though, or that Constitutional meaning or intent should be there thus treated, either.

Which Founder cautioned against a binding judicial interpretation of the Constitution, warning that it would in effect make the courts an unanswerable and highest power in the land, thereby laying the groundwork for tyranny by judiciary? Sorry, the reason I'm asking is that I don't recall the exact quote or spokesman.

[andyfox]

Was it Madison, in the quote cited in one of Borodog's posts in this thread?