The myth of strict constructionism

oscarBravo

I wanted to respond to this, but it was off-topic in its original thread, so I've started this one.

There's something transparently dishonest about the philosophy of strict constructionism. The idea is that the US Constitution should be read literally as it is written, and that there is no room for interpretation.

So, let's look at the text of the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

How do the strict constructionists deal with the fact that the only sane interpretation of this English sentence involves the existence of a well-regulated militia? Simple, they decide that half the sentence is mere preamble, and can be safely ignored.

Hmm.

OK, let's move on to the post that prompted me to reply. This deals with what little of the text of the amendment remains:

Amerika wrote: »

Of course not. People such as criminals and the mentally ill shouldn’t be allowed to own guns.

Now, I'm trying to reconcile this with the utterly unambiguous statement that "the right of the people to keep and bear Arms, shall not be infringed." I'd love to have it explained to me how denying criminals and the mentally ill the right to own guns isn't infringing their explicitly enumerated constitutional right to keep and bear arms?

If someone is a strict constructionist, shouldn't they be demanding that the criminally insane be allowed to own anti-tank missiles?

If someone argues that criminals should be denied the right to keep and bear arms, shouldn't they admit that the Constitution is (indeed, logically must be) open to interpretation?

AbusesToilets

oscarBravo wrote: »

I wanted to respond to this, but it was off-topic in its original thread, so I've started this one.

There's something transparently dishonest about the philosophy of strict constructionism. The idea is that the US Constitution should be read literally as it is written, and that there is no room for interpretation.

So, let's look at the text of the Second Amendment: How do the strict constructionists deal with the fact that the only sane interpretation of this English sentence involves the existence of a well-regulated militia? Simple, they decide that half the sentence is mere preamble, and can be safely ignored.

Hmm.

OK, let's move on to the post that prompted me to reply. This deals with what little of the text of the amendment remains:



Now, I'm trying to reconcile this with the utterly unambiguous statement that "the right of the people to keep and bear Arms, shall not be infringed." I'd love to have it explained to me how denying criminals and the mentally ill the right to own guns isn't infringing their explicitly enumerated constitutional right to keep and bear arms?

If someone is a strict constructionist, shouldn't they be demanding that the criminally insane be allowed to own anti-tank missiles?

If someone argues that criminals should be denied the right to keep and bear arms, shouldn't they admit that the Constitution is (indeed, logically must be) open to interpretation?

My understanding was that it is now considered that every able bodied (wo)man is part of the militia, and thus meets the criteria set forth in the 2nd. That would be a more modern interpretation of the Ammendment, so not really fitting with the argument.

I would agree with your overall point, any legal framework has to be capable of adapting to the times.

alastair

The need to second-guess what the hell the constitution is supposed to mean is something of a clue that it may not be actually fit for purpose. Regardless of whatever spin you put on the role and nature of well regulated militias, the fact that they're presented to provide context to the right to bear arms had some manner of significance to the drafters.

Whether that has any relevance in an era of a federal military with such strength, that no militia, state or otherwise, has any meaningful place in the armed defence of state or nation, isn't that much of a head-scratcher.

The notion that there's a freelance army of contemporary Minutemen ready to defend against federal oppression of individual liberty just takes this farce to the extreme. You're not a patriot - you're just a fantasist with a sad hobby.

Other countries manage to have gun ownership without the ideological idiocy as a bolt-on. The NRA are half right on one thing - guns don't kill people, idiots/children/fearful folk/nutters/cops/crims/whatever-you're-having-yourself-people kill people. They just do so much more efficiently with guns - a tailor made tool for the job. And part of that problem is clearly the supposed 'Minuteman' culture of gun ownership in the US.

gandalf

The thing to bear in mind is the US Constitution was written at a time when guns were single shot devices that took time to reload. I highly doubt they considered weapons that are capable of firing up to 100 rounds before a quick reload with a magazine. It's needs to be revisited and amended for the modern era.

Cookie_Monster

gandalf wrote: »

The thing to bear in mind is the US Constitution was written at a time when guns were single shot devices that took time to reload. I highly doubt they considered weapons that are capable of firing up to 100 rounds before a quick reload with a magazine. It's needs to be revisited and amended for the modern era.

While undoubtedly true, the hysteria that would surround a modern move to restrict type or calibre would make it impossible to get something like that through IMO.

AbusesToilets wrote:

My understanding was that it is now considered that every able bodied (wo)man is part of the militia,

how ridgedly can you argue that though, can wheelchair users own weapons strictly speaking under the above?

Itssoeasy

oscarBravo wrote: »

I wanted to respond to this, but it was off-topic in its original thread, so I've started this one.

There's something transparently dishonest about the philosophy of strict constructionism. The idea is that the US Constitution should be read literally as it is written, and that there is no room for interpretation.

So, let's look at the text of the Second Amendment: How do the strict constructionists deal with the fact that the only sane interpretation of this English sentence involves the existence of a well-regulated militia? Simple, they decide that half the sentence is mere preamble, and can be safely ignored.

Hmm.

OK, let's move on to the post that prompted me to reply. This deals with what little of the text of the amendment remains:



Now, I'm trying to reconcile this with the utterly unambiguous statement that "the right of the people to keep and bear Arms, shall not be infringed." I'd love to have it explained to me how denying criminals and the mentally ill the right to own guns isn't infringing their explicitly enumerated constitutional right to keep and bear arms?

If someone is a strict constructionist, shouldn't they be demanding that the criminally insane be allowed to own anti-tank missiles?

If someone argues that criminals should be denied the right to keep and bear arms, shouldn't they admit that the Constitution is (indeed, logically must be) open to interpretation?

Yeah this is interesting to me. I mean people in the USA who subscribe to the theory that the us constitution is a document to be interpreted literally yet have arms that in no way would come under the 18th century definition of a gun or arms. I find it funny tbh.

AbusesToilets

Cookie_Monster wrote: »

While undoubtedly true, the hysteria that would surround a modern move to restrict type or calibre would make it impossible to get something like that through IMO.


how ridgedly can you argue that though, can wheelchair users own weapons strictly speaking under the above?

There is no bar to gun ownership based on physical ability.

I am for gun ownership personally, just to be clear. I don't want to derail the thread into an argument about that though.

I would think a more pertinent example would be related to the changes to voting rights over the centuries, as an example of a living legal framework.

goose2005

gandalf wrote: »

The thing to bear in mind is the US Constitution was written at a time when guns were single shot devices that took time to reload. I highly doubt they considered weapons that are capable of firing up to 100 rounds before a quick reload with a magazine. It's needs to be revisited and amended for the modern era.

That's a myth. The constitution was written at a time when even warship and howitzers were in private hands.
https://www.quora.com/What-were-the-most-advanced-arms-available-in-1791-the-year-that-the-2nd-amendment-was-passed

goose2005

Itssoeasy wrote: »

Yeah this is interesting to me. I mean people in the USA who subscribe to the theory that the us constitution is a document to be interpreted literally yet have arms that in no way would come under the 18th century definition of a gun or arms. I find it funny tbh.

But by that logic you could argue that the first amendment doesn't apply to TV, radio or Internet communications.

Overheal

goose2005 wrote: »

But by that logic you could argue that the first amendment doesn't apply to TV, radio or Internet communications.

Correct, adding to the humour of the constructionist position.

Amerika

oscarBravo wrote: »

I wanted to respond to this, but it was off-topic in its original thread, so I've started this one.

There's something transparently dishonest about the philosophy of strict constructionism. The idea is that the US Constitution should be read literally as it is written, and that there is no room for interpretation.

So, let's look at the text of the Second Amendment: How do the strict constructionists deal with the fact that the only sane interpretation of this English sentence involves the existence of a well-regulated militia? Simple, they decide that half the sentence is mere preamble, and can be safely ignored.

Hmm.

OK, let's move on to the post that prompted me to reply. This deals with what little of the text of the amendment remains:



Now, I'm trying to reconcile this with the utterly unambiguous statement that "the right of the people to keep and bear Arms, shall not be infringed." I'd love to have it explained to me how denying criminals and the mentally ill the right to own guns isn't infringing their explicitly enumerated constitutional right to keep and bear arms?

If someone is a strict constructionist, shouldn't they be demanding that the criminally insane be allowed to own anti-tank missiles?

If someone argues that criminals should be denied the right to keep and bear arms, shouldn't they admit that the Constitution is (indeed, logically must be) open to interpretation?

Oh come on! One does need divine interpretation to realize, as any reasonable person would, that the founding fathers didn’t want to put guns into the hands of crazy people or give guns to criminals behind bars. You’re stretching the idea of interpretation to ridiculous levels. We are grounded in the founding principles. We want to leave the Constitution alone if it embodies natural law and the wisdom of our founding fathers. Any changes to the US Constitution should be made by the proper Constitutional process to amend it, instead of resorting to unlawful judicial authority.

Amerika

gandalf wrote: »

The thing to bear in mind is the US Constitution was written at a time when guns were single shot devices that took time to reload. I highly doubt they considered weapons that are capable of firing up to 100 rounds before a quick reload with a magazine. It's needs to be revisited and amended for the modern era.

You forget that at the time of the US Revolution, rifles were available when the standard firearm was the smooth bore musket. And the Founding Fathers new it. The Pennsylvania (Kentucky) Rifle can be considered the AR-15 of the time.

Overheal

Amerika wrote: »

Oh come on! One does need divine interpretation to realize, as any reasonable person would, that the founding fathers didn’t want to put guns into the hands of crazy people or give guns to criminals behind bars.

The right of the people to keep and bear arms, SHALL NOT BE INFRINGED!

oscarBravo

Amerika wrote: »

Oh come on! One does need divine interpretation to realize, as any reasonable person would, that the founding fathers didn’t want to put guns into the hands of crazy people or give guns to criminals behind bars.

As Overheal has pointed out, a truly strict constructionist reading of the Second Amendment allows for only one interpretation: any law that in any way restricts any person's right to own any weapons is unconstitutional.

Now, as you've just pointed out, that reading is, to put it kindly, batsh*t insane. Which means that any person who isn't a complete idiot recognises that the Second Amendment allows for the right of the people to keep bear arms to be infringed, if it makes sense to do so.

In other words, strict constructionism is a myth. Anyone who claims to be a true strict constructionist is either an idiot or a liar, which was my original point.

You’re stretching the idea of interpretation to ridiculous levels.

I'm addressing the idea of strict construction. Either you read the words as they are literally written, or you interpret what you believe their meaning to be.

Now, I'd venture to estimate that approximately 99.98% of self-described strict constructionists would accept the Heller interpretation of the first half of the Amendment. In other words, they are strict constructionists - as long as the strict construction concurs with their prejudices. When that isn't the case, they suddenly become interpreters.

We are grounded in the founding principles.

Where are those written down?

We want to leave the Constitution alone if it embodies natural law and the wisdom of our founding fathers.

Where are those written down? What did the founding fathers have to say about the Internet? About nuclear weapons? About biological warfare?

Any changes to the US Constitution should be made by the proper Constitutional process to amend it, instead of resorting to unlawful judicial authority.

No argument there. But there's something fundamentally dishonest about arguing that we should adhere to the unquestionable wisdom of the literal words of the Constitution, while simultaneously arguing that the first half of the Second Amendment can be safely ignored, and that it's perfectly constitutional to infringe the rights of some of the people to keep and bear arms.

K-9

Amerika wrote: »

Oh come on! One does need divine interpretation to realize, as any reasonable person would, that the founding fathers didn’t want to put guns into the hands of crazy people or give guns to criminals behind bars. You’re stretching the idea of interpretation to ridiculous levels. We are grounded in the founding principles. We want to leave the Constitution alone if it embodies natural law and the wisdom of our founding fathers. Any changes to the US Constitution should be made by the proper Constitutional process to amend it, instead of resorting to unlawful judicial authority.

Yet you and others are opposed to banning people on terrorist watch lists from owning guns...

AbusesToilets

K-9 wrote: »

Yet you and others are opposed to banning people on terrorist watch lists from owning guns...

Those watch lists are a disgrace, and wholly opaque. Anyone who believes in the tenets of democracy should be in opposition to them.

Fleawuss

The fundamental problem is the human failing of taking a foundational generation (or in religions an alleged "revelation") as possessed of a greater wisdom than ourselves. Their texts then have to be parsed and analysed and reinterpreted in the most tortuous way to try to arrive at a solution that fits our understanding of humanity and the world.

Constitutions should be constitutionally limited to fitting on both sides of one A4 page with margins of 2 cm, printed in Arial Normal 12 point and single line spacing. Concentrate the mind.

The governing of most aspects of life should be by laws that each generation decides. Rule by the dead is always mad.

K-9

AbusesToilets wrote: »

Those watch lists are a disgrace, and wholly opaque. Anyone who believes in the tenets of democracy should be in opposition to them.

Jaysus I'd be liberal enough on some issues but that's a bit far out for me.

AbusesToilets

K-9 wrote: »

Jaysus I'd be liberal enough on some issues but that's a bit far out for me.

Have you read about the no fly list? It's an awful thing. Even with a terror watch list, you run into the issue of depriving someone of their Constitutional rights without any judgement or finding of guilt. That's a very slippery slope.

oscarBravo

AbusesToilets wrote: »

Have you read about the no fly list? It's an awful thing. Even with a terror watch list, you run into the issue of depriving someone of their Constitutional rights without any judgement or finding of guilt. That's a very slippery slope.

I tend to agree with this. If you're confident someone has done something wrong, prosecute them. If you genuinely suspect they might do something wrong (actual probably cause, as distinct from "they look arabic" or "they have the same name as someone dodgy), keep an eye on them.

But preventing someone from boarding a plane on a vague suspicion? That's insane.

Brian?

Amerika wrote: »

Oh come on! One does need divine interpretation to realize, as any reasonable person would, that the founding fathers didn’t want to put guns into the hands of crazy people or give guns to criminals behind bars. You’re stretching the idea of interpretation to ridiculous levels. We are grounded in the founding principles. We want to leave the Constitution alone if it embodies natural law and the wisdom of our founding fathers. Any changes to the US Constitution should be made by the proper Constitutional process to amend it, instead of resorting to unlawful judicial authority.

Are you playing the role of constructionist here?

If so, can you please define the terms "founding principles", "natural law" and "wisdom of our founding fathers"?

I'm going to drop some hints here. Later I'll bring up slavery and a quasi religious cult.

oscarBravo

oscarBravo wrote: »

If someone is a strict constructionist, shouldn't they be demanding that the criminally insane be allowed to own anti-tank missiles?

There is no such thing as a strict constructionist.

Constitutions are interpreted literally, historically, purposively, and otherwise, depending on the particular article or clause in question, or from case to case. This is the case for statute, also.

In an Irish context, the personal rights section of the constitution were in the 1960's read very broadly by the O'Higgins court, and the US constitution was read with a very broad, liberal, purposive approach also. Whereas Supreme courts have tended to recoil from admitting the existence of socio-economic constitutional rights, relying on very strict, literal approaches to interpretation.

To speak of one form of interpretation alone makes absolutely no sense. It's a non-issue outside of internet forums.

K-9

AbusesToilets wrote: »

Have you read about the no fly list? It's an awful thing. Even with a terror watch list, you run into the issue of depriving someone of their Constitutional rights without any judgement or finding of guilt. That's a very slippery slope.

I suppose if somebody supports the right of a militia to arm itself because of suspicion of Government, not supporting no fly zones makes sense.

AbusesToilets

K-9 wrote: »

I suppose if somebody supports the right of a militia to arm itself because of suspicion of Government, not supporting no fly zones makes sense.

Not quite following you there? Are you arguing for a no fly list as it currently exists or talking about no fly zones?

Amerika

Brian? wrote: »

Are you playing the role of constructionist here?

If so, can you please define the terms "founding principles", "natural law" and "wisdom of our founding fathers"?

I'm going to drop some hints here. Later I'll bring up slavery and a quasi religious cult.

Let’s just cut to the chase and get right to where you want to go – slavery. Although President Lincoln (R) overstepped his presidential authority with the Emancipation Proclamation, the Constitution was amended in the proper manner with the ratification of the Thirteenth Amendment to the United States Constitution.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Brian?

Amerika wrote: »

Let’s just cut to the chase and get right to where you want to go – slavery. Although President Lincoln (R) overstepped his presidential authority with the Emancipation Proclamation, the Constitution was amended in the proper manner with the ratification of the Thirteenth Amendment to the United States Constitution.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Close but no cigar. It was more the founding fathers proclaiming that all men were created equal, while owning men they clearly considered less than equal.

These are the founding fathers whose wisdom we should bow to?

Amerika

Brian? wrote: »

Close but no cigar. It was more the founding fathers proclaiming that all men were created equal, while owning men they clearly considered less than equal.

These are the founding fathers whose wisdom we should bow to?

Yes! For centuries slavery had been a growing part of the world-wide economy, not just in the 13 Colonies. The fact that some of the Founding Fathers opposed slavery at all was an incredibly radical idea for their time. The issue of Slavery was temporarily compromised in order to get all 13 Colonies to declare independence from England. And they did later provide a mechanism to correct matters in the US Constitution for a changing world... Amendments. And although none of the Founding Fathers lived to see the legal abolition of slavery, many of them contributed toward preparing the Gradual Act for the Abolition of Slavery.

http://www.revolutionary-war.net/abolition-of-slavery-gradual-act.html

vetinari

For whatever reason (open to opinions on this), passing constitutional amendments seems to be dead in the modern era.
The last major amendment the 26th was ratified in 1971, that set the voting age at 18.
The 27th amendment which was ratified in 1992 after over 200 years to quote wikipedia
" prohibits any law that increases or decreases the salary of members of Congress from taking effect until the start of the next set of terms of office for Representatives." was more of a side show.

So it's been 45 years since someone actually tried to amend something significant in the constitution.
Amendments are never discussed on the news and major candidates don't seem to have them as part of their policy platforms.
So if the idea of passing amendments is dead, the only practical approach to the constitution is interpreting it as a living document.

vetinari

vetinari wrote: »

For whatever reason (open to opinions on this), passing constitutional amendments seems to be dead in the modern era.
The last major amendment the 26th was ratified in 1971, that set the voting age at 18.

Once a constitutional document has established itself, one would expect to reach a stage where amendments become less and less frequent, owing to the fact that the major wrinkles have been ironed out.

This is especially the case during times of relative political stability.

Let me anticipate your possible reply, saying that Ireland is an outlier in this respect. That's right. We've had more constitutional referendums since 2010 than occured during the first 40 years of the Constitution. But that's largely derivative of the size of the Irish Constitution (a relatively large document by international standards, with its finger in a lot of pies) combined with a fairly unique emphasis in Irish constitutional law on references to the People, as well as the fact that not much happened in Ireland in the mid-20th century, socially, politically, or otherwise.

So if the idea of passing amendments is dead, the only practical approach to the constitution is interpreting it as a living document.

A constitution is regarded as a living document in all Commonwealth jurisdictions (except for in the United Kingdom), regardless of whether or not there are regular amendments. The Irish courts have repeatedly stressed the living, changing nature of the Constitution in this country; that is regardless of any amendments that may or may not occur.

Again, this idea of there being one way of interpreting the Constitution, or even a particular article, is simply wrong. No legal system in the commonwealth tradition adapts such a strict approach. They use different modes of interpretation depending on the context.