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Interpretation of the Constitution

The Constitution is not a “living document”. Once the Constitution becomes subject to varying interpretation, the rights guaranteed therein are not absolute, but become subject to popular whim — the precise problem the document is designed to avoid. This does not mean constitutional concepts are inflexible, as the document itself allows means to amend it if needed (a difficult process and one not to be undertaken lightly, but not impossible).

The proper method to understand the Constitution in the Courts is the “textualist method” [4] espoused by Supreme Court Justice Scalia. Simply put, the text is plain and means what it says. An obvious concept to be sure, but unpopular to those desiring to subvert constitutional guarantees.

A textualist rejects the strict constructionist view as well (the most narrow view possible) which does make the Constitution inflexible to anything not in use in the 1700’s; different groups want either a strict constructionist or living document view — both are wrong; the textualist sits between two extremes and provides consistency, while allowing new situations to be addressed.

In ambiguous situations (as, for example, new technologies like radio and the Internet), textualists seek to determine original meaning, which differs considerably from original intent; original intent proves vague and highly subject to conjecture; writing legislation involves dozens of people (at least), each with their own reasons for desiring a piece of legislation passed. How can original intent of all the authors be determined? It can’t. However, original meaning considers the application of the law in the past, and how it was understood by courts, people and society before. Thus, laws can’t change meaning over decades and centuries. Textualism allows application to new situations and technologies, but remains uniform.

As an example of perils the living document view create, consider marriage laws which were universally understood to be between a man and a woman for many years; the law is not ambiguous in application and meaning. Yet recently some courts have “found” new ideas in an old law. Original meaning voids these rulings as they radically depart from the understanding and application of the law over time. You may or not agree with the definition of marriage as one man and one woman (that’s not the point), but it’s obvious the way laws have been understood and applied for decades.

Thus, if you disagree with the law you repeal it or change it — you can not simply “reinterpret” it to suit you. If you want gay marriage, polygamy or something else, change the law. Period. Judicial activism (by liberals, conservatives or any other group) subverts the separation of powers as legislation is the role of Congress, not the courts. By allowing the Constitution to change as a living document, laws change by the whim of courts, not legislative action. At worst, no one really understands what the law means until a court decides — which may itself change a year from now.

Textual interpretation of the Constitution both guarantees rights are truly unalienable (as the founders stated), and equally guarantees flexibility to apply constitutional law to new technologies and situations the framers couldn’t conceive.

NOTE: The complete article on Constitutional Conservatism is available as PDF.

[4]“Scalia Dissents” 2004, page 2-9

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  1. afterechoes says:

    What do you have to say about Constitutional construction in matters of war?

    Your comment would be appreciated regarding our post:

  2. Constitutionally, it’s pretty simple. Congress authorizes the use of the military, and once done, the President (as Commander in Chief) determines how the military will be used to accomplish the task.

    Politically, of course, it’s much messier — what Congress can’t do (but wants to) is micro-manage how the President commands the military. Once authorization is given, it’s up to the President to determine appropriate courses of action. And of course, the President is not to engage militarily without Congressional authorization.

    One thing complicating the situation a bit is the War Powers Act of 1973 which basically gives the President 60 days before he needs approval from Congress in the event he undertakes military action.

    However, if everyone stuck to what their Constitutional duties are (no more and no less) we’d all be a lot better off (and that applies to much more than this one issue).

  3. […] document” to be plied and molded to whatever view you want (we’ve talked about the dangers of the living document theory before, so won’t rehash the entire discussion […]

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