Saturday, September 13, 2008

The View on the Church/State Issue and "Original Intent" Doctrine

Though I am not a big fan of The View, I thought that this short clip would help instigate a good discussion on a couple of interesting issues.

As part of John McCain's appearance on the daytime talk show, the Senator was asked to comment on his view of the Church/State debate, in particular some of the perceived differences he and Sarah Palin have on the issue. In addition, McCain was questioned about his opinion of the ever-controversial Roe v. Wade decision. Here is the video of the interview:



As we all know, the doctrine of "Original Intent" has become extremely popular in a number of circles. The idea of returning to a "pure" understanding of our Constitution, as our founders understood it, invokes powerful feelings of patriotism and nostalgia. However, how much of an "Original Intent" interpretation of the Constitution do we really want?

As Whoopi Goldberg points out in this clip, a STRICT interpretation of the Constitution, as our founding fathers saw it, would have to include -- among other things -- a return to slavery. Now, it would be completely foolish for us to believe that the supporters of "Original Intent" want to bring back slavery. With that said, the question we are forced to ask is, "What kind of ORIGINAL INTENT are we talking about?"

All of us realize that returning to a STRICT and LITERAL interpretation of the Constitution is completely ridiculous and impossible. For example, strict adherence to the Constitution would require us to eliminate the Air Force and the Marines from our national defense, since the Constitution calls for providing for the common defense by means of an Army and Navy. And of course, very few Americans -- if any -- would be in favor of eliminating the Air Force, Marines, etc.

I realize that I am essentially knit picking here, but I do think that this is an issue worth exploring. Exactly what does the "Original Intent" doctrine mean? What role -- if any -- does religion play in understanding this doctrine? Can we even call it "Original Intent" after sifting away the undesirable and obsolete laws set down by our founding fathers?

In addition to these questions, I do not want to ignore the other issue mentioned in this video, that being the never-ending church/state argument. I guess its ironic that this video mentions the "In God We Trust" issue, which is something Jon Rowe has brought up in a recent post below.

Anyway, your thoughts...

28 comments:

Tom Van Dyke said...

Can we even call it "Original Intent" after sifting away the undesirable and obsolete laws set down by our founding fathers?

Of course.

If you are looking for the best arguments on its behalf, Justice Scalia's your man.

If you want bad arguments that are easily torn apart, stick around and mebbe someone will bite.

"It may surprise the layman, but it will surely not surprise the lawyers here, to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis.

It would be hard to count on the fingers of both hands and the toes of both feet, yea, even on the hairs of one's youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean.

That is, I suppose, the sort of behavior Chief Justice Hughes was referring to when he said the Constitution is what the judges say it is.

But in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing -- either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court's desires, or else not discussing original intent at all, speaking in terms of broad constitutional generalities with no pretense of historical support."---Antonin Scalia

Dave2 said...

Brad Hart,

I don't think the slavery point really undermines originalism. After all, there's an amendment that takes care of that.

And, as far as I can tell, the only support for your claim "All of us realize that returning to a STRICT and LITERAL interpretation of the Constitution is completely ridiculous and impossible" is that most of us don't want to get rid of the Air Force and Marines.

bpabbott said...

Regarding "Original Intenet", I don't think there is literal answer, or even eternal answer to that question in all cases.

There are instances where the specific intent matters and others where the spirit of the intent is what matters.

Are *all* men created equal ... meaning *no* women? ... are individuals of African and/or Asian descent "men"?

Interpretation is a matter of judgement. I'd prefer the court to interpret the law so as to minimize a finding of guilt. If the legislature finds their court's position to be objectionable, they will be strongly motived to do something about it.

Dave2 said...

Bpabbott wrote:
Are *all* men created equal ... meaning *no* women? ... are individuals of African and/or Asian descent "men"?

Uh, that's the Declaration of Independence.

bpabbott said...

Dave: "Uh, that's the Declaration of Independence"

I'm realize that.

... but how are we to infer the intention of the phraseology? ... literally, in the spirit of its original use but in the context of today, or in the context of the founders?

Brian Tubbs said...

The EXTREME form of "original intent" is that we have to get into the minds of the authors of our Constitution - and try to apply the Constitution EXACTLY as they would. This is impossible for a number of reasons.

The more moderate "originalist" camp (which I'm definitely a part of) is that our laws - from the Constitution through our federal laws, state laws, etc. - should be interpreted and applied, according to the meaning of the words used in said laws, and that the meaning of the words should reflect the generally understood meaning of the terms AT THE TIME THE LAWS WERE APPROVED.

So, in the case of the First Amendment, the courts should interpret the establishment clause, according to how the founding generation understood that term. This isn't the same as getting into the head of the framers of that clause, though that's part of it. It's simply being honest with the meaning of the terms.

The caveat on that, of course, is that - as the Constitution is amended - some terms will be superseded and/or differently applied. And that's okay.

A true originalist isn't saying we have to be stuck in the 18th century. A true originalist is saying that we can't let the COURTS become a policy-making branch. Once that happens, the Supreme Court becomes an unelected and ultimately unaccountable oligarchy.

Phil Johnson said...

.
The Constitution is NOT the Founding Document so much so as is the Declaration of Independence. Maybe I'm all alone on that point? As for originalism, we have the Articles of Confederation.
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This nation was Founded in order to form a government--the purpose of which is--to secure the certainty of rights we possess in nature without the fear of being restrained and to be put in bondage by tyrants and other strong bullies.
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In our interpretations of the U.S. Constitution, shouldn't our courts see it as the tool that allows us to seek out and secure the natural rights that are indicated in the Declaration of Independence? Are not our natural rights the fulcrum on which our government is balanced? Are women allowed to have control over their own bodies in nature?
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Am I all alone on this?

bpabbott said...

Brian: "A true originalist is saying that we can't let the COURTS become a policy-making branch. Once that happens, the Supreme Court becomes an unelected and ultimately unaccountable oligarchy."

That is some spacious claim, I think.

If the court interprets the constitution in a manner that is objected to by the legislature, they can obviously act to correct it.

Accountability of the court is part of the balance of powers.

If the court is to err, it should do so (imo) by persevering too much liberty. If the legislature finds a particular instance of liberty inappropriate they can legislate a remedy.

If the court errs in the other direction, it is exceedingly less likely that a solution from the legislature will be remedy the liberty lost by the minority.

Phil Johnson said...

.
My above comments were made, in part, based on this statement by Brian, "The EXTREME form of 'original intent' is that we have to get into the minds of the authors of our Constitution - and try to apply the Constitution EXACTLY as they would. This is impossible for a number of reasons."
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I do not think it is entirely impossible to get inside of their minds.
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Men, and women, take action--especially in situations where their very life is at risk--based on extremely strong beliefs and not on some spur of the moment decision not to be unjustly taxed. But, it was on the deepest desires of real live human beings to break loose from the bondage of a tyrant who was disallowing them the dignity to practice their natural God given rights..
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That, in and of itself, puts us into the minds of the Founders.
.

Dave2 said...

bpabbott wrote:
If the court interprets the constitution in a manner that is objected to by the legislature, they can obviously act to correct it.

Are you referring to the process of amending the Constitution? If not, I don't follow.

bpabbott said...

Dave asked: "Are you referring to the process of amending the Constitution? If not, I don't follow."

I'm referring to all law.

Tom Van Dyke said...

Dave asks an astute and key question, Ben. If the Supreme Court nixes a law as unconstitutional, what shall the legislature do then?

In recent years, Constitutional Conventions are not called, and the ERA [Equal Rights Amendment] died a slow death when put to the states.

The Court always wins. If they are our rulers---and it appears at this point that they are---we are not a republic, nor a democracy.

You're a smart guy, Ben. You see the problem here.

bpabbott said...

Tom: "If the Supreme Court nixes a law as unconstitutional, what shall the legislature do then?"

The constitution is clear on that. no?

Do you infer that the court should do its duty to protect rights and should defer that responsibility to the legislature?

Seems quite unlikely that is what you imply.

Do you imply that the legislature might be sufficiently divided that the courts judgement will stand?

I'm confused, what is your concern?

I've said before that I'd favor a court which offers more restraint in subjective matters, as it reduces tyranny and protects liberty.

Tom Van Dyke said...

As Justice Hughes said, the constitution is whatever the court says it is. That was the argument for 'originalism," whatever that is.

Jonathan Rowe said...

I don't know; given the court has no power over the purse or the sword, I have a hard time believing we are being "ruled" by them. Esp. in instances where all they do is nullify a law that impinges on an individual's personal liberty.

Jonathan Rowe said...
This comment has been removed by the author.
Matt Huisman said...

Don't be so sure about that. The Supreme Court has already stated that judges may order tax increases.

Dave2 said...

Tom Van Dyke wrote:
If the Supreme Court nixes a law as unconstitutional, what shall the legislature do then?

bpabbott replied:
The constitution is clear on that. no?

Are you referring to the process of amending the Constitution? If not, I don't follow.

bpabbott said...

Dave: "Are you referring to the process of amending the Constitution? If not, I don't follow."

You follow perfectly.

Tom Van Dyke said...

I have a hard time believing we are being "ruled" by them. Esp. in instances where all they do is nullify a law that impinges on an individual's personal liberty.

Yes, Jon, you do have a hard time---as long as the court keeps coming up with outcomes you like and fit with your own philosophy of government. The "Esp." part.

But when the court substitutes its value judgments for the people's---Esp. their elected representatives---"consent of the governed" is ignored, and this is also a violation of liberty.

Moreover, personal liberty is not the only element in the constitutional equation. A court could easily start emphasizing the common good or the "general welfare" and similarly violate the consent of the governed, which it may have done in Kelo, where the government took away people's houses to build a shopping center.

And who were the dissenters in the 5-4 decision? The dreaded "originalists." In the grand scheme of things, I'd rather take my chances with them.

Wiki: Clarence Thomas also penned a separate originalist dissent, in which he argued that the precedents the court's decision relied upon were flawed and that "something has gone seriously awry with this Court's interpretation of the Constitution." He accuses the majority of replacing the Fifth Amendment's "Public Use" clause with a very different "public purpose" test: "This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'"

Explicit Atheist said...

Tom Van Dyke said...

"If you are looking for the best arguments on its behalf, Justice Scalia's your man."

Unfortunately, I think he is also a good example of how Original Intent can be misutilized. The consensus among historians as I understand it is that the 2nd amendment was originally intended to ensure that the national government didn't disarm the state militias. The state militias were thought of as protecting state sovereignty from a power grab by the national government. So original intent should interpret the 2nd Amendment as protecting the state governments right to arm their own soldiers. The 2nd amendment gives the states the right to arm their National Guard. But Scalia didn't want to reach that conclusion and he had to rule in accord with his "original intent" philosophy, so he wrote a long defense of a history that most historians reject in the June 5-4 decision against the District of Columbia's gun control law.

Tom Van Dyke said...

I don't know what "most historians" means, EA. But it's nice you made your way over here and good to see you again. We need more atheists. With been scraping by with Unitarian Universalists.

But if you try to take away my gun, I'll shoot you, man. If only I can find the ammo. Must be around here someplace...

Dave2 said...

Tom Van Dyke wrote:
But when the court substitutes its value judgments for the people's---Esp. their elected representatives---"consent of the governed" is ignored, and this is also a violation of liberty.

I don't know about this. If Congress passed a law saying Muslims can't vote to the approval of 90% of the population, when SCOTUS struck it down as unconstitutional, I'd be hard-pressed to call that a "violation of liberty".

But then again, I don't buy this whole Rousseau-style democracy-worship.

Dave2 said...

explicit atheist wrote:
The consensus among historians as I understand it is that the 2nd amendment was originally intended to ensure that the national government didn't disarm the state militias.

I think the pendulum has swung some towards the "individual right" interpretation. Not that there's a consensus on it or anything. Just that you'll find leading constitutional scholars like Lawrence Tribe who think it's an individual right.

Tom Van Dyke said...

Dave2, per Amendment II, an interesting illustration of the tidal nature of the consent of the governed, in that Edmund Burke conservative kind of way. There isn't a great tide against the 1934 federal ban on machine guns, either.


I don't know about this. If Congress passed a law saying Muslims can't vote to the approval of 90% of the population, when SCOTUS struck it down as unconstitutional, I'd be hard-pressed to call that a "violation of liberty".


I purposefully wrote "value judgments." Different deal.

bpabbott said...

ExplicitAtheist: "The consensus among historians as I understand it is that the 2nd amendment was originally intended to ensure that the national government didn't disarm the state militias."

This was before federalism. Since the states are not accompli, I think the current interpretation is a reasonable interpretation of the intent ... given the context we now find ourselves in.

Dave2 said...

Tom, fair enough, if the value judgments are completely unanchored in the constitution. But I think the interesting and controversial cases aren't like that: take the right to privacy that Griswold v. Connecticut found in the "penumbras, formed by emanations" from specific guarantees in the Bill of Rights. Here the reasoning seems to be, "well, this specific guarantee in the Constitution would be pretty meaningless if it didn't protect this and rule out that" -- cf. the two-child sterilization policy example from Griswold. And that's not just value judgments pulled from one's pocket, it's a kind of constitutional interpretation. (Indeed, I suspect any reasonable originalism will have to make use of similar modes of reasoning.)

Tom Van Dyke said...

Dave, I think Griswold supports my analysis. The dissenters in that case attack "penumbras, formed by emanations," and indeed accurately predict Kelo. We must acknowledge that some things are in the Constitution, but we must then recognize that gray areas necessarily constitute the need for value judgments: two rights being in conflict, one must be adjudged to hold primacy.


Justice White, in a separate concurrence with the majority in overturning the ban on contraceptives, manages to find the outcome you find agreeable without introducing "penumbras, formed by emanations" into judicial precedent, an introduction that in my view has been a gateway to all sorts of judicial overreach. Justice White is a-OK in my book. His judicial philosophy would also have led him to vote against Kelo.