“Wise Men” and Originalism

Many a conservative Mormon lawyer that I know is fond of those scriptures in the Doctrine & Covenants the exalt the place of the U.S. Constitution. Let me suggest, however, that this is less important for constitutional law than many of them assume.

Many Mormon lawyers make a link from scriptural statements about the Constitution to originalism. Originalism is a particular interpretive approach to the constitution that comes in basically two flavors. Intentionalists seek to resolve questions of constitutional interpretation by divining what “the founders� intended. Who exactly the founders are is often kept vague. The whose who of American politics in the 1780s? This includes, for example, Jefferson, who, luckily for the republic, had virtually nothing to do with the writing of the constitution. Those at the constitutional convention? Those in the ratifying conventions? The second flavor of originalism harks back to “original meaning.� The idea is that rather than looking at authorial intention, we look at how particular phrases would have been understood in the 1780s or 1790s. For example, if “freedom of the press� in the 1790s meant only that there were no prior restraints on publication but post-publication punishment was fine (and this is about what freedom of the press meant in the 1790s), then that is how the Free Speech Clause ought to be interpreted.

The extent to which these are good interpretive methodologies is contested. Frankly, no one follows them completely consistently (the closest is Justice Thomas, but he fudges). Furthermore, no one really thinks they are irrelevant, however much Antonin Scalia makes their blood pressure rise. The question is whether Mormon theology commits us to either of these approaches.

The D&C does refer to “wise men� that God raised up to author the constitution, which might be a basis for intentionalism (although not original meaning). However, it seems to me that this won’t really get the argument off the ground. The virtue of its drafters might be one reason to interpret a law in light of their intentions, but it seems that we need more than this. We need a theory of law and adjudication rather than a judgment about concrete individuals in the past. Furthermore, the passages in the D&C were given in the 1830s. It seems unlikely that they can be taken to warrant originalism in the interpretation of amendments passed later. This leaves would-be Mormon originalists in the awkward position, for example, of having an justification for an originalist approach to the due process clause of the Fifth Amendment but not the due process clause of the Fourteenth Amendment.

My point here is not to attack originalism. I am actually pretty sympathetic to a lot of it, and I certainly find some of the proffered alternatives distasteful. I don’t really want to be ruled by Dworkin cum Hercules for example. However, I think that the link from originalism to Mormon theology is weak, or at least it is weak if it rests purely on the D&C’s endorsement in passing of certain aspects of the constitution and the “wise men� who authored it. I leave open the possibility that Mormon theology might generate some theory of law in general that could then point us toward originalism, but that would be a lot of work, and it is work that has not yet been done.

93 comments for ““Wise Men” and Originalism

  1. I, too, am often sympathetic to originalism. But I disagree with those who find support for it in divine writ. Nate references D&C 101:80. But that scriptue merely says that the Lord “raised up” “wise men” who drafted the Constitution — not that the document itself was “inspired,” and certainly not that any one contributor’s interpretation of the words is inspired. More recently, others — such as President Benson and Elder Oaks — have called the document itself “inspired.” But as Elder Oaks has pointed out, that doesn’t mean it — much less any particular person’s interpretation of it, even one who helped write it — is perfect. Elder Oaks in the Feb. 1992 Ensign pointed out that the Prophet Joseph himself saw flaws:

    “[T]he Prophet Joseph Smith … faulted the Constitution for not being ‘broad enough to cover the whole ground.’ In an obvious reference to the national government’s lack of power to intervene when the state of Missouri used its militia to expel the Latter-day Saints from their lands, Joseph Smith said,

    “’Its sentiments are good, but it provides no means of enforcing them. … Under its provision, a man or a people who are able to protect themselves can get along well enough; but those who have the misfortune to be weak or unpopular are left to the merciless rage of popular fury.'”

    Oaks also cites J. Reuben Clark, whose statement was also cited by Noel Reynolds in the June 1976 Ensign — along with one by Brigham Young:

    “President Brigham Young once declared that both the signers of the Declaration of Independence and the framers of the Constitution ‘were inspired from on high to do that work.’ But he then went on to ask, ‘Was that which was given to them perfect not admitting of any addition whatever?’ His answer was a clear negative. He said the founders ‘laid the foundation, and it was for after generations to rear the superstructure upon it. It is a progressive—a gradual work.’ (Discourses of Brigham Young, 1925 edition, p. 550.)

    “President J. Reuben Clark, Jr., a great constitutional scholar in his own right, expressed this same view when he said, ‘It is not my belief nor is it the doctrine of my Church that the Constitution is a fully grown document. On the contrary, we believe it must grow and develop to meet the changing needs of an advancing world.’ (Vital Speeches of the Day, 1938, 4:177.)”

    Perhaps these references were only to the possibility of amending the constitution. But to me, they buttress the conclusion that the constitution is an outline, embodying some general principles (Oaks lists 5), that must be adapted to changing times. If the founders wanted something that was more fixed in meaning, they could have done what most states have done with their constitutions: fill them with page after page of specifics.

    Nate is also on target when he asks just who the “founders” are. When I teach state constitutional law, I emphasize the difficulty in answering that question even for 20th century constitutions. After all, they are adopted by popular vote, so wouldn’t it be those who voted whose interpretation actually matters — even if what they thought the constitution meant was quite different from what those who wrote it intended?

  2. Nate, great post. I certainly agree that the D&C’s praise of the founders (as “wise men”) does not necessarily mandate originalism as a modality of constitutional interpretation. In fact, Scalia’s own arguments for originalism make far more sense than such grounds for Latter-day Saints to support it. Personally, I find Scalia’s arguments for originalism are persuasive because he largely uses it to show that it is a measurable modality as opposed to the personal (often political) preference of a given judge in deciding a constitutional issue. But even though I personally find that approach persuasive, I don’t see any reason that Latter-day Saints generally are required to do so.

    In fact, if you are taking a religious perspective and are seeking some kind of modality that resonates with broader Latter-day Saint doctrine, originalism, which as Scalia formulates it is an anti-living Constitution approach to the Constitution, actually seems a very unlikely approach to the Constitution. That is, it might be very natural for a Catholic like Scalia to espouse originalism, given the similarity of this modality to broader Christian approaches to religion (i.e. no continuing revelation, biblical inerrancy, to wit, originalism). But Latter-day Saints (most of them) claim to adhere to a living religion, one that is guided by continuing revelation and thus not tied to a document written in stone. If you allow this living-religion-doctrine to spill over into constitutional law, then you have an equation stacked against an originalist interpretation. But the real question is, why should religious doctrine spill over into modalities of constitutional interpretation in this way? Why should we allow it to move us to put our trust in judges with questionable (according to Gospel principles) social agendas. Roe v. Wade truly is a creative piece of constitutional interpretation: I would argue that neither the founders nor those who crafted the Fourteenth Amendment could possibly have conceived that their words would be used by judges to condone the practice of killing children in the womb. It runs very much afoul of originalism, however hard that concept is to pin down, if you are talking to a deconstructionist. Indeed, it exemplifies the living Constitution strain of constitutional interpretation. Scalia’s point is that if you employ personal/political preference/agenda to interpret the Constitution, then that in itself deconstructs the Constitution to the point of meaninglessness; hence, it is safer to adhere to originalism, which is measurable, and which despite its weaknesses, provides ascertainable guidelines independent of capricious political trends. It forces constitutional law, as a field, to be fundamentally conservative, not in the tired partisan use of that word in our current political atmosphere, but in the valuable notion that change in such important things should be deliberative and slow, and even non-existant in some cases. The D&C, however, does not mandate any of this; to the contrary, Madisonian thought (which itself draws from Lockeian notions of natural law and rights) pervades those sections of it that deal with government.

  3. JL,
    I agree with Nate Oman’s general point that the D&C only provide weak support for originalism. But I don’t think that your argument (that the Constitution isn’t perfect) does much to support Nate’s point. Questions about what the Constitution means are fundamentally different from questions about whether the Constitution is perfect. Here’s a case in point: we acknowledge that the Bible isn’t perfect, say. We come across some section of the KJV that appears to have a different meaning in the original greek than it does in the English translation. Does the Bible’s imperfections help us decide that the English meaning is better? Nope.

    In fact, if anything, acknowledging that the Constitution isn’t perfect might actually support originalism, because it lets us accept original meanings that we find distasteful.

  4. In re the wisdom of the founders as a basis for intentionalism:

    That the founders were wise actually tells us more about the kinds of political goals and means we should adopt than it does about interpreting the Constitution. Maybe it tells us that we should treat the Constitution (at least as it was before later amended) as internally consistent and all its part as non-redundant, but pretty much everyone does this anyway.

    Go, William Paterson!

  5. Adam,

    I have a hard time believing that any of this legal flapdoodle is half as interesting as flouridation.

  6. I think that Adam’s point about the disjunction between one’s view of the merits of the constitution and the methodology that one adopts in reading it is important. It points to an odd paradox, however, namely the way that we fequently equate judicial virtue with the willingness to come to the “wrong” conclusions because of what the “law” says. Or so I “think.”

  7. Kaimi,

    I take it you’ve never had a smallpox vaccination? :) It is more interesting than phluoridation but not as intellectually stimulating as intentionalism.

  8. If we are to allow ourselves to be persuaded that there is some merit in espousing either intentionalism or originalism as a result of LDS doctrine about the Constitution in the D&C (which I don’t think is necessarily mandated, see my comment # 2), then perhaps we should be more selective about who exactly was inspired and who the founders are. Perhaps God was referring to a smaller circle than we normally think when he said he “raised up” “wise men” to draft the Constitution. After all, we know how central a role Madison played drafting the Constitution. Perhaps much of the praise in the D&S flows directly to Madison and his thought. But the Constitution was in dire trouble absent the compromises that were found in the Convention. So that expands the wisdom to those present and who supported the compromises (thus excluding Madison???). Then again, the Constitution might not have gained popular support absent the apologetics that touted it in the Federalist Papers, so we have Madison back on board again, together with Hamilton and John Jay. This view, by the way, also excludes anyone associated with the Anti-Federalist Papers.

  9. Could it possibly be that all were inspired because they provided for contrary views in the various opinions regarding the establishment of the country. The fact that some were Federalists and some were anti-Federalists provides for a living document that allows for originalist arguments at different points in history but also an intentionalist argument based on correct principles, regardless of which side of the argument you are on.
    Not being a lawyer (Julie) I’m not sure that what I just said makes any real sense, but my point is that with the relativism that persists today, there doesn’t appear to be an appeal to the “Founders” in any real way.(i.e. Justice Rehnquist just berated the conservatives for their attacks on the judiciary…) Both sides seem to want things their way. The inspired part comes from the fact that, in spite of their differences, founded on principle, they found a way to agree so that a great nation could be built and a democracy established. If only that could be done today…

  10. John Fowles,
    Add good ol’ William Paterson.

    Or, instead of trying to decide which men in particular were wise, maybe we could try to figure out the scriptures on Councils and Councilling and apply them to the Convention, or even the national debate that led to ratification and the adoption of the Bill of Rights. Civic republican notions of Deliberation would come into it too. But you’d have to be sharper than me to do it.

  11. In Isaiah 2, of course as LDS we refer to this section and believe Isaiah sees the latter-day temple. But I think it’s more than just that. I believe America’s law or U.S. Constitution (US Con) is also “the law� that shall go forth. The US Con was the first written constitution, and inspired by God. Many nations have used the US Con as their model, so I believe that is in fulfillment of this Isaiah prophecy.

    Interesting when you compare the nation led my Moses and the 10 Commandments and the nation of the U.S.A and it’s US Con.

    Both nations have at its center and heart words written by the finger of God. With the people of Moses, it is the 10 commandments. With the USA it’s the US Con. Moses’ people enshrine the 10 commandments in the Ark of the Covenant and set it in the Holy of Holies as the greatest symbol of their covenant with God and the chosen people. The USA puts their US Con in a like ark and in a great temple and house it as the prime evidence of out great nation, a nation born by the power of God and the principles found in the US Con and the Declaration of Independence. Further, the USA is like a father to the state of Israel, and it’s of no small consequence that God has had his hand upon both nations since the beginning.

    So, Isaiah see in America the restored glory of the gospel, the temple in Utah or all temples, and then he sees the gathering of Israel which is performed by the LDS Church, then the Millennial judgment and peace.

  12. Roger,
    Do you believe the clauses protecting slavery and the three fifths compromise were “written by the finger of God?”

  13. A better place to start for an LDS originalist argument might be Mosiah 29:10-32. Kings are a bad idea because they might be wicked and they are hard to dethrone. One is then faced with the possibility of an otherwise good society suffering under a bad King. On the other hand, it is good to be governed by majorities and supermajorities because they are less likely to be wicked, and because a wicked majority is in any case unlikely to be salvaged by good leaders (see v. 27 and the whole BoM).

    (i.e. for a monarchy, a two-by-two matrix of good/wicked for King and Society produces bad results in every box except good/good. If you switch to a democracy with rules implemented by steward/agents, you slice off two of the wicked boxes and your chances are better than not of having a good society – right?).

    What then of judges? Good judges “judge according to the laws which have been given you by our fathers, which are correct, which were given them by the hand of the Lord.â€? – v. Bad judges act like, well, Kings. They don’t follow the old laws, but instead become laws unto themselves.

    I think this has parallels to the U.S. situation. The constitution is the product of supermajorities and some inspiration, was handed down by our fathers through a process of vetting and alteration. The people who are least likely to hold to it – those who appoint themselves guardians of the Republic and go mucking around in penumbras and sweet mysteries of life – produce a pattern of disturbing results. And worst of all, Supreme Court Justices are hard to get rid of. People don’t understand much of what they do, and you have to either impeach them or wait until they die.

    Q. Should LDS be in favor of democratic controls on judges – i.e. supermajority recalls and the like?

    PS I’m new to this. Could someone explain to me what the “URL� box is for?

  14. Roger: Actually very, very few nations have copied the U.S. Constitution or used it as their primary model. The Phillipines comes to mind as an example. I can’t think of any others, but I am sure are are one or two. The Westminster model (ie the UK’s constitutional system) has been immensely popular and is probably the most widely modled version of liberal democracy. Which, of course, leads me to the conclusion that many of our constitutional obsessions with judicial review and the counter majoritarian difficult may be a waste of time. Most of the world’s democracy do quite nicely without judicial review in our sense.

  15. Amen Roger! I particularly like the way you drew Israel into the mix. The Knesset and Sharon are in God’s hands, surely. Or at least, He should take them in hand.

  16. I don’t think anyone who scatters apostrophes the way Nate did in this post should ever criticize anybody for misspelling “fluoridation” repeatedly or pronouncing “nuclear” as “nucular”. He may, however, criticize the Nuclear Regulatory Commission for heading one of its decisions “Unclear Regulatory Commission.”

  17. Roger…Do you believe the clauses protecting slavery and the three fifths compromise were “written by the finger of God

    I’m not certain. To contrast, were the Reformers inspired? Sure they were yet did not have the priesthood to restore the church, but Reformers helped move the world along towards a Restoration.

    Likewise, would the US Con have passed the ratification process if slavery was outlawed in the 1788 version? I don’t think so.

    And while it is interesting to consider who was and wasn’t inspired, wouldn’t it be more beneficial to focus on which principles were inspired?

    Question: is originalism the same as being : a strict constructionist. Is the main purpose of the originalism viewpoint to arrive at original intent? And has anyone read A Familiar Exposition of The Constitution of the United States by Joseph Story…just wanted feedback if you read it and if you’d recommend it or not.

  18. When I read scripture (i.e., inspired an document), I read for the Lord’s meaning — not the meaning of the person (prophet or otherwise) who penned the words. I consider it possibly — indeed, likely — that many scriptures were written under inspiration without the writer having a clear vision of what later readers would draw from them. If I were to limit myself to the meaning that the writer himself intended, I might miss what the Lord intended me to get from those words. I’ve certainly never felt that Church leaders feel restricted to scriptural meanings that the writer intended.

    Some who accept that approach to scripture seem to demand it for the Constitution.

  19. Someday I’ll learn to proof before posting…

    When I read scripture (i.e., inspired documents), I read for the Lord’s meaning – not the meaning of the person (prophet or otherwise) who penned the words. I consider it possible – indeed, likely – that many scriptures were written under inspiration without the writer having a clear vision of what later readers would draw from them. If I were to limit myself to the meaning that the writer himself intended, I might miss what the Lord intended me to get from those words. I’ve certainly never felt that Church leaders feel restricted to scriptural meanings that the writer intended.

    Some who accept that approach to scripture seem to demand it for the Constitution.

  20. Adam,

    Is there nothing truely commendable in JL’s comment? How do you read your patriarchal blessing? Must you return to your patriarch in order to uncover the prophetic meaning of the blessing? While I think JL may presuppose a little too much inspiration in the Constitution in order to make his point, I think his overall statement is a good reminder that the full meaning of inspired documents cannot be uncovered merely by relying on the opinions of specialists.

  21. JL makes a good point and it’s something I touched on earlier in one of my comments. That is that our peculiar view of scripture and revelation as Latter-day Saints, if allowed to direct our ways with regards to constitutional interpretation, would actually weigh in against originalism in much the same way that our scriptural view excludes biblical inerrancy.

    I thought that Nathan Smith had a very interesting approach for justifying originalism from the standpoint of LDS doctrine in his comparison of judges and kings. Indeed, in our constitutional system, only federal judges are remotely comparable to old-time kings–especially those judges who are more “flexible” in their constitutional interpretation and adjudication, because those judges create penumbras and shadow areas in order to reach a result that is at best attenuated based on the purpose and meaning of the Constitution, however laudable the social agenda behind such contortions might be. When Scalia suggests that the proper means by which to effect such change is by passing a law, I don’t see that as such a cop-out as the Left seems to think. The Constitution has built in protections of minorities against majority tyranny (that is one of its purposes, see Federalist 10), especially after incorporation of much of the Bill of Rights as against the states, but that does not mean that democratically passed laws can’t do the job of moving social change and progress. It just means that it will happen with the approval of the people who are the foundation of power in this Republic. If the majority of the people ends up voting for and enacting legislation that is directly contrary to the will of God and even repugnant to him, then it will be up to God to act. But when judges, who are a law unto themselves when they use the bench to enact social legislation that couldn’t possibly pass a democratically elected legislature in this country, that changes the equation and in a sense forces society at large into moral positions that they would not have chosen to be in of their own volition.

    Nate, I agree and disagree with your assertion regarding the US vs. UK constitutional models and their influence in the world. First of all, I disagree that the US Constitution has had the small impact that you suggest. You have a good point with judicial review (but that is not really a constitutional mandate in our system either), but the fact is that most countries who have a written constitution are “following” the US Constitution in a certain sense for that very reason. The UK has no written constitution. It is true that most governmental systems follow the Westminster model in that they are parliamentary rather than presidential political systems. I suppose that is what you meant. But they are following the example of the US in enshrining a written constitution to protect whatever governmental system that they have in place, and to protect fundamental rights with Bills of Rights, the idea of which follows the example of the US system. Also, I would argue that the US also follows the Westminster model in its own Constitution, since the US inherited Anglo institutions and the rule of law before creating its written constitution. (After centuries of existence as a nation state, the UK is now also subject to a written bill of rights as of the 1998 Human Rights Act when Parliament incorporated much of the European Convention into UK law. Judges in the UK may mow overrule executive decisions or Parliamentary acts that violate human rights law. This, in turn, has prompted calls for abolishing the Law Lords and especially the office of Lord Chancellor because of the separation of powers problems that are now present as a result of a cabinet minister also sitting in judgment on acts of the government.)

  22. John: For what it is worth, the UK had a bill of rights long before the 1998 Human Rights Act, indeed, long before we passed the first ten amendments in 1791. As part of the Glorious Revolution of 1688, Parliament passed a bill of rights. That is where we got the name from.

    Our system was influence by the Westminster model, to be sure, but there were other powerful influences. For example, the whole notion of the seperation of powers is foreign to the Westminster system (and is not followed by most liberal democracies). Madison et al got that one from Montisque.

    The current judicial developments in the UK are facinating. I had not heard that there were calls to abolish the office of Lord Chancellor. It was interesting to follow the British reactions to the recent Law Lord’s decision regarding indefinite detention for terrorist suspects. It is worth noting, however, that despite things like the 1998 Act and the Lord Lords’ recent decision, parliament could still abrogate this stuff by a simple majority vote.

  23. Nate, not to nit-pick, but if I understand it correctly, the Bill of Rights Act of 1689 did not deal with the protection of the rights of individuals from encroachment from the government but rather dealt with limitations on the use of Royal prerogatives, in an effort to reduce further the capriciousness of rule by kings (following in the footsteps of the Magna Carta and the Petition of Right). Essentially, the Bill of Rights Act ended the idea of the divine right of kings and elevated acts of Parliament even about the whims of the monarch. It also subjected the monarch to the consent of Parliament to keep soldiers in England during times of peace and addressed the freedom of the monarch to make use of cruel and unusual punishment. So in some senses it is indeed a precursor or model for our “Bill of Rights.” At the same time as the Bill of Rights Act, the Religious Toleration Act was enacted (1689), which did to a very limited extent the work of our free exercise clause. It is true to say that we borrowed the name of our Bill of Rights from the 1689 Act of Parliament, but the thrust of it was innovative and has been a model for a written protection of rights (now known as fundamental or human rights) in many constitutions around the world. None of this is to deny the fact that another innovation of the US system was the separation of powers adopted from Montesque (I don’t think I really argued that that was not an innovation of our constitution). I was merely pointing out that even our system has the Westminster model in the background to some extent, despite the radical ways that the founders adapted and changed that model.

  24. Oops, that should read “elevated acts of Parliament even above the whims of the monarch.”

  25. Jack,
    I wasn’t being sarcastic. I really did think that JL’s approach to scripture was commendable and I really did need help understanding how that applied to the Constitution.

    If JL had in mind what subsequent commenters had in mind, then it looks like the argument goes like this: “inspired documents, like the scriptures and the Constitution, don’t have a fixed meaning. God inspires us to draw meanings from them relevant to our current circumstances.”

    Here’s why I don’t think that works: (1) when we are interpreting the scriptures, usually we’re interpreting it for our own private use. So it’s not a problem if a scripture has multiple meanings and you pick one and I pick another. But the Constitution is meant for public use. That’s why, in the Church, the prophet can interpret scripture in a way that trumps our interpretations. So scriptures are only a model for a living Constitution if you think the relations of judges to God and the nation is the same as the relation of prophets to God and the church.
    (2) Also, in lots of ways my description above of how prophets recieve public revelation isn’t accurate. Prophets don’t usually introduce inspired change by coming across a reinterpretation of scripture. Usually God reveals something to them and then scripture is reinterpreted to fit it. So it seems that reinterpreting a living Constitution is really not reflective of what we do in the Church. What would be more analagous is God raising up righteous men who amend the constitution. The question here, of course, is knowing who exactly those men are.

  26. Adam wrote So scriptures are only a model for a living Constitution if you think the relations of judges to God and the nation is the same as the relation of prophets to God and the church.

    I agree with you on this. That is why I think that if we allowed ourselves to be persuaded by the comparison, then originalism wouldn’t be a good fit for Latter-day Saints, and living Constitution notions would make more sense. However, I am nervous to put the same kind of trust in federal judges that I put in the prophet and the apostles. Therefore, even though I don’t think that the D&C by its language lauding the founders as “wise men” mandates originalism in constitutional interpretation of American Latter-day Saints, I also don’t think that our unique religious perspective on the scriptures and revelation mandates adherence to principles of living Constitution interpretations. At this point, there are at least three options:

    (1) We are in the same boat as everyone else on this: we have to reason through what we personally think is the best approach to do justice to the Constitution and its purpose. Personally, I find Scalia’s approach very persuasive–not because of the inherent goodness or rightness of originalism, but because it is measurable and can provide predictable answers whereas personal or political preference cannot provide such predictability or stability.

    Or, if LDS doctrine does give guidance on one constitutional modality over another, I believe it needs to be

    (2) derived from other passages in the BoM (which actually deals heavily with the problems of politics and majoritarianism), as noted by Nathan Smith, or

    (3) from addresses of our modern-day leaders (which does not exclude leaders of this dispensation who have passed on).

    However, the extent to which the views of Church leaders on constitutional modalities is persuasive or controlling is a matter up for debate. That is, it seems likely that one could either follow one or another of Church leaders with different political views, according to one’s own political views, thus defaulting back to possibility (1).

  27. Sorry for misreading you, Adam.

    I think the distinction you make between the constitution (a public document) and the scriptures (more private in nature – though not always) is important. However my main point (as it relates to JL’s point) is that trusting the interpretation of specialists (judges, historians, linguists etc.) while useful may not reveal all that an inspired document is ment to convey. No doubt, the LDS tend to look at the constitution from a different (or sharper) angle than others of it’s supporters because of our take on agency – or any number of other principles. Therefore, while I agree that the constitution was fashioned as a public document and intended to be accessible to the same, I believe that greater meaning may be derived from it by viewing it from a more “inspired” context.

  28. You’re intriguing me, Mr. Jack.

    Are you saying that, since the Constitution is an inspired document, we should interpret it to be in harmony with other inspired gospel principles? Very intriguing indeed.

    Earlier, Nate O. suggested that we should sit down the revelations and scriptures and, with prayer and much thought, try to harmonize them and evolve an LDS theory of law and politics. This theory would then be used to explain the meaning of the Constitution.

    You’re saying something different. You’re saying we should sit down with the revelations and the scriptures and *the Constitution* and try to harmonize them directly. In some sense this could be very enlightening. What does the First Amendment mean? We’d just look at LDS doctrine on the desired contours of religious liberty and Voila! But ultimately I think this runs up against the problem that we still have to decide what the scriptures mean. We don’t really have a good idea about how to go about interpreting scriptures when we’re using the scriptures publicly. What’s more, I don’t think scriptural principles tell us a whole lot about say, the extent of Federal Power over the commerce clause. In lots of ways, I think its the other way around. If we could decide what it meant to say that the Constitution was inspired, then we could use the constitution to figure out what our doctrines about politics and the law were.

  29. Adam,

    A question. When you say we don’t know how to interpret the scriptures publicly, are you saying that because we might offend someone, or is because we are ignorant as to public interpretation?

  30. Yes. I’m saying that our models of scripture interpretation are personal–they all involve revelation, and study and heuristics as a vehicle for revelation. We really don’t have a good idea of how one goes about deciding what the scriptures mean for everyone because we don’t really need one. We do the same thing publicly as we do privately–instead of trying to figure out what the scriptures mean, we use them as a springboard for seeking revelation.

  31. Adam,

    I’m not really sure what I’m saying. I feel a little out of my element here, but it seems to me that if we’re going to rely on others to interpret the constitution for us, I for one would find some comfort in knowing that those doing the interpreting might consider it an inspired document – if for no other reason than it causing them to be open to the idea that further inspiration may be required to interpret it correctly.

  32. There is much more in scripture supporting the divine source of the Constitution than D&C 101:80. There is also 98:5, 7 which says that Constitutional law is “justifiable before [the Lord]” and that “anything more or less than this [the Constitution] cometh of evil.” In the dedicatory prayer of the Kirtland temple Joseph Smith prayed that the “Constitution…be established forever.” (D&C 109:54) D&C 101:77 says that the Constitution was established to protect the rights of “all flesh.” Hand in hand, these last two scriptures tell me that the principles of the Constitution transcend time and culture, perhaps reflecting the pattern of Christ’s Millenial government?

    Original meaning is the only way we can interpret the Constitution and still have a Constitution. The original meaning of the words at the time, as understood by the people of that time, supplemented with contemporary commentary and debates (i.e. The Federalists and Anti-Federalist) is the only keystone to not turning it into a “living document”.

    James Madison said it best in a letter to Henry Lee:
    “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its poewrs. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of this government must partake of the changes to which the words and phrases of all living languages are constantly subject.”

  33. Bork was one of the main proponents of using original intent to interpret law. He and the majority of the intellectual proponents of originalism have gone away from interpreting what congress actually intended when they passed a law or signed the constitution. The main reason for this departure is that the laws aren’t written by the congressman, they are written by clerks. Most bills are written without ever being read by the senators. It simply isn’t practicle to understand the intent of someone who never even read the legislation. This has moved the debate to one of “textualism.” what did the text mean at the time it was written. Many court rulings today don’t even meet the broader standard of textualism, nevermind the issue of intent. At the founding of the country, everyone agreed that “due process” was about procedure. If we are going to take your land away to build a road, we must have a process in place like a trial, to ensure your rights aren’t violated.

    The legal meaning of the phrase “due process” has changed to now include substance as well as procedure. That allows the courts to add substance to constitution through that phrase. It did it in the horrible Dredd Scott decision. It is infered that people have a substantive right to property, therefore the courts finds a law unconstitutional that prohibits slavery. The same arguement was used in Roe v Wade. We have a substantive right to privacy, so abortion laws are unconstitutional. The problem with this method, is the only one who can say what is a substantive right is the courts who are not elected. That seems to fit the definition of tyrrany to me. Unelected officials imposing their will. As long as the courts say something is a substantive right it is so under that new definition of “due process.” The right to healthcare could easily be added forcing the government to make healthcare free to everyone.

    The courts have crossed the line of interpreting the law into creating the law. In my opinion the constitutional principle of seperation of powers was inspired. If you believe that to be true, then some version of textualism is the only way laws can be interpreted without the courts exercising tyranny. In addition, if the D&C doesn’t explicitly say the constitution was inspired, several presidents of the church have. Although agreeing that a document was inspired doesn’t necessarily make it flawless. Fortunately the constitution provides the ammendment processes to correct its flaws. Unfortunately we have used the idea of a “living” constitution to incorporate flaws into the constitution.

  34. I’m brand new to this discussion, having just heard about this site. So if I repeat anything that has already been said, then I apologize.

    I consider myself to be a hard-line constitutionalist, which is one of the reasons that I abhor President Bush, who seems to have no regard for it at all. I believe it was inspired of God, but as was stated in the original post, it wasn’t a perfect document. Yes, I believe that it needs to be amended and adapted for our day. But my question is this: should we or should we not regard it as law? If so, then we should be obligated to follow it unless and until it is amended? Or do we just ignore the parts we don’t like because it’s out of date? Unfortuantely, so much of the constitution is ignored or violated without any amendments having been made. If we disagree with the contents of Article 1, Section 8, for instance, then let’s change it. But until we do, are we not bound to follow it? Are not judges bound by oath to uphold it? As well as President Bush? Why is he so above the law?


  35. Jay, care to give any more detail about your specific reference to Article I, Section 8? Are you willing to apply the same logic to Roe v. Wade and other penumbras of the Fourteenth Amendment? In other words, does the judicial creation of such penumbras, which aren’t there textually, in order to legalize a controversial social practice such as on-demand abortion, violate this principle of following the Constitution as law, which you put forth in your comment?

  36. Earlier we agreed that the scripture saying that the Founders were inspired provided some support for original intent approaches. Thinking it over, I wonder if it also provides some support for original meaning. John Fowles (learn to capitalize, John. It’s the latest thing) asks a very pertinent question: who in the Founding generation were the inspired wise men that the scripture talks about? The only good answer I see is one that turns the question on its head—the wise men were those who were involved in preparing the Constitution. Just a the intent of a legislature–who are a body of men with differing views–the intent of the Founders is hard to discern. They disagreed about things, and had different views. Our only access to the collective wisdom of the Founders, then, is the Constitution itself, perhaps.

  37. John,

    My point about Article 1, Section 8 is that it lists the powers of congress, but many of the things that congress does today is clearly outside of their vested powers within the Constitution. Also, one of the major issues of today is the Bush war in Iraq which is totally illegal if you apply this clause of the Constitution. Which would make Bush a war criminal. Which I believe he is.

    As to abortion on demand, I believe that the 5th amendment clearly prohibits it.


  38. Jay,
    Have you ever considered that the true path of fidelity to the Constitution might not lie in insisting on one’s own understanding of the original meaning to a T?

    I think the best originalist approach is to do as much originalism as is politically possible. Better than than pure, unspotted devotion to the Constitution but without any power to act on that devotion.

  39. Jay,

    If Bush is a war criminal, by virtue of the Constitution, then so are many of the presidents of the 20th century.
    My problem with calling him a war criminal is that he is being judged by a document that no other leader in the world is being judged by, and by using such terminology you give fodder to tyrants who might want to try him as a “war criminal”, while at the same time excusing their despicable behaviours.
    Adam, you are right in equating the “inspired” men with the document and not necessarily their views on any particular issue. This allows debate to continue, with no one side having a corner on the market of new or good ideas that keep the Constitution alive. Bad ideas are also fostered by both sides and tend to destroy, rather than uphold that document. .

  40. Adam,

    If we don’t apply the original meaning, then we don’t have a constitution. Not so?

    I’m not in la-la land. I know that it’s not reality to expect our leaders to honor their oaths of office. But it should start somewhere. I’m just pointint out that I’m disgusted with our current leadership.

  41. Larry,

    I agree. Many of the presidents of the 20th century are also war criminals. If they break the law, that makes them a criminal, right? And what is worse than illegally taking the life of another person? I wouldn’t have a problem with him being tried as a war criminal as I consider him to be a tyrant, just as many other world leaders. Wrong is wrong. Immoral is immoral. And our leaders are no more above the law than any other.


  42. Jay,
    War criminal has a specific menaing. Going to war in contravention of one understanding of the separation of powers isn’t it.

  43. Adam,

    What would be your definiton of a war crime? You may have a point, since Bush’s war is not a legal war, which means it isn’t a war so it can’t be a war crime. Maybe it all boils down to Bush just being an immoral murdering tyrant.


  44. Jay,

    Don’t you feel just a little anger in you when you talk like that? That might be a good indication that the terminology and punishment are way over the top. Pres. Hinckley supported the war. Does that make him a war criminal also?
    Adam is right. The precedents were set long before Bush became president. There has been lots of discussion on this site regarding the war. Obviously there is a lot of disagreement, but nobody has taken up arms to shoot his neighbor over it.
    I think that hits the point Adam was talking about re: differing views but coming up with such a great document. The differing views continue, but in an atmosphere of somewhat respectful, though heated debate.
    What would your take be if he had done nothing and they came here and did here what they are doing in Iraq? What kind of criminal would he be then? Be careful that your rhetoric doesn’t reflect emotional biases against Bush but rather reflects thoughtful analysis of the Constitution and the history that has come down from it’s origins.
    You can still disagree with what Bush and others have done, but not with so much rancor.

  45. Jay, it is your opinion that the Iraq war is illegal. Admittedly, many others in this country and around the world share your opinion. But Adam is correct in noting that “war criminal” has a specific meaning. You might be surprised as to what it comprises. In any event, even those who denominate the Iraq war as illegal have a difficult time substantiating that based on UN Security Council Resolutions. It is easy to make the accusation, but far more difficult to provide a legal basis for the accusation. If Saddam had WMD, then the Coalition invasion was by no means illegal, as the Resolution ending the First Gulf War authorized use of force should Saddam not comply with its requirements, and the Security Council authorized severe measures should Saddam not comply in 2003. The language in the more recent Resolutions is ambiguous enough to preclude any accusations of Bush being a war criminal for enforcing UN Security Council Resolutions.

    As for your Article I, Section 8 complaints, I find it a little amazing that you take this approach. Much of what Congress does is not explicitly mentioned in the printed text of Article I, Section 8, but that is because as the government has expanded and as new responsibilities have arisen, they have found their basis in the enumerated powers already listed in the Constitution. Thus, they stand of firm constitutional foundation.

    By the way, don’t forget the “necessary and proper” clause of that section.

    Also, you believe that the Fifth Amendment clearly prohibits on-demand abortion? Is that because it denies babies due process of law? Or do you base that on ideas of property rights? I am no supporter of abortion, but I am curious to know more about your position on the Fifth Amendment.

  46. Larry,

    No, I don’t really feel any anger. Mostly I’m just disgusted. Also, I don’t agree that President Hinckley supports the war. That’s also been discussed at length on many forums and it’s a matter of who wants to hear what. I do remember when he said that we support the president. I support my children, even when they do wrong. I don’t support what they do, but I always will support them.

    I hope I’m not coming off as being disrespectful to any of you. To be honest, I don’t respect Bush as a president, but I do respect him as a child of God. It’s interesting that if you read “True to the Faith” in regards to war, it says something along the line of if one is called to war and must take the life of the enemy, if he can do so while still regarding him with love and as a a child of God, then it is not a crime. You see, I love Bush as a child of God, but I have no respect for him in his office. I believe that he should be tried for what I believe is his criminal behavior. I honestly believe that he should be behind bars. Constitutionally, I believe that I am on solid ground, because there is nowhere in the Constitution that allows for presidential wars. There was much debate and thought put into that by our founding fathers and it was carefully worded such that it could not be misunderstood that ONLY congress can declare war. And just as I have often stated and felt, only tyrants can solely call a war upon another country. In our country, which is supposed to be a republic, it requires an act of congress. The responsibly cannot and should not be placed upon one man. And rightfully so. President makes no difference. Just because everyone else does it, does that make it okay for me to do it? Right it right and wrong is wrong.

    I believe that my thoughts are in line with the Constitution, so my biases againt him are not personal. They are legally and constitutionally based. If I’m wrong, let’s discuss it.


  47. John,

    About the fifth amendment, yes, I personally believe that a “person” includes unborn babies, which also have the right to due process.

    You also said, “By the way, don’t forget the “necessary and properâ€? clause of that section.” I haven’t forgotten that at all. But the entire sentence says, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” A lot of what congress does has nothing to do with executing the FOREGOING POWERS. Social security, education, welfare, medicare, etc. . . . all have no basis in the constitution. It’s the “foregoing” powers that most people seem to forget.


  48. Oops!

    Above, I said, “President makes no difference.” I meant to say “Precedent makes no difference.” Sorry.


  49. Jay,
    Who is going to be the judge at this court, and who will bring the charges? So far as I know there is no actual ‘crime’ of going to war without Congressional consent (though I vaguely recall that Bush did have congressional consent. Could be wrong) and the way the Constitution provides for things like that is impeachment. Seems you should be calling for Bush to be impeached, not tried.

    Also, like J. Fowles says, war crimes are usually understood to be things like genocide, using chemical weapons, etc. They are crimes as defined in customary international law (whether narrowly or broadly understood) and by treaty. As you might imagine, customary international law and various treaties (like the Geneva Convention) are not very much concerned with the separation of powers in the United States constitution. Those are seen as internal matters.

  50. Adam,

    Yes, he should first be impeached, then put on trial. So I’m saying that both should happen.

    Congress gave “consent”, yes, but they did not declare war. There’s big difference. Look at the October 2001 resolution and then look at a declaration of war, such as when we went to war against Japan in 1941. Big difference.

    I think that illegal taking of life in “war” is a crime, whether tried internationally or domestically.


  51. Why doesn’t precedent make a difference, Jay?

    If you are an originalist, then you might think that getting some originalism is better than none and resign yourself to supporting a somewhat acceptable Congress and President. Your purist brand of originalism seems to be a self-defeating suicide pact (so to speak).

    And, you know, sometimes you just gotta bow to precedent. No one’s going to give the Indians their land back, e.g., though its hard to argue that its original siezure was justified.

  52. What’s the big difference? Seems like you can’t really explain why giving consent is not constitutionally sufficient without getting back to Nate’s point about how you interpret the Constitution.

  53. Jay: your argument for President Bush’s disregard for his oath of office would be stronger if it were based not on the war clause but rather his signature of McCain-Fiengold legislation coupled with the admission that he knew certain parts of it are unconstitutional but that he expected that it would be straightened out in the courts. That was disappointing.

    And not that I think it matters constitutionally, but you should also recognize that there’s a non-frivolous argument that Congress did authorize the use of force in Iraq.

  54. It’s interesting that someone can be so sure of what the Constitution means and then get it so completely wrong.

    The fifth amendment prohibition on taking of life without due process only applies to taking of that life by the government. If I, who am a private individual, were to blow your silly head off, you (or your survivors) would not have a constitutional claim (that I somehow deprived you of your life without due process of law). Instead, you could sue me for wrongful death, and the prosecutor could bring criminal charges against me, if he didn’t exercise prosecutorial discretion and choose not to prosecute (say, for example, if he thought the shooting was justifiable).

    Since the government is not performing abortions, there’s no question of a taking of life that would implicate the fifth amendment.

  55. There is only one crime that is defined by the constitution. Article III defines treason as making war on the united states and states certain evidentiary requirements for conviction. Other than that, to my knowledge there are no constitutionally defined crimes. (Slavery is arguably a constitutional crime under the 13th amendment.)

    Even the treason clause, so far as I know, is not self-executing. In other words, it places limits on what Congress may declare treasonable but does not require that Congress actually declare anything treasonable.

    In otherwords, violation of the constitution is not a crime unless Congress says so. Furthermore, there is nothing conceptually difficult about saying that certain violations of the law are not criminal. Indeed, we live in a world in which there are literally tens of thousands of laws that can be violated without any criminal liability.

    Hence, not only would an unconstitutional war not constitute a war crime under customary international law or applicable treaties, it would also not constitute a crime of any kind under the constitution. Of course, certain sorts of actions taken in the course of an unconstitutional war might subject a president to criminal liability. But it would be the violation of these laws, not the constitution, that made the president criminal

  56. Furthermore, the Fifth Amendment applies only to the federal government. To reach action by state governments, one would have to look to the due process clause of the Fourteenth Amendment (which also applies only to government action). Needless to say, the Fourteenth Amendment rather explicitly contravense the intent of the Founders.

    Of course, certain forms of abortion should constitutionally protected under the Second Amendment regardless of ones view of the post-Griswold substantive due process cases.

  57. I’m dying to know the theory under which the 2nd amendment protects certain forms of abortion.

  58. Outstanding. I was thinking that the argument was going to have something to do with a surfeit of babies somehow interfering with our ability to field a well-regulated militia, like, “Hey, it’s hard to drill on this parade ground with all these babies everywhere!”

  59. Realize that Nate’s second amendment argument is tongue in cheek, no matter how much he protests to the contrary. Please.

    Mark B.,
    I’m inclined to think its pretty silly, but there is an argument that the 5th Amendment (and the 14th) require the government to protect life, liberty, and property to some degree, esp. life. But these arguments are running pretty far from originalist pastures.

  60. Bush’s war in Iraq is not only unconstitutional (Jay’s argument) but illegal and immoral as well. We are a signatory to the UN charter and as such we are legally bound to the laws and mandates of that charter. The UN charter forbids any member state from military action against another member state without the approval of the UN Security Council. The UN Security Council specifically forbad US military action in Iraq.

    International law also forbids a country declaring war unless said country has been attacked.

    International law and several international resolutions that the US has signed require that the military target only armed combatants. Yet the “exercises” in Falujah, et al, are clearly targeting civilian targets–intentionally and accidentally. The US has also targeted civilian infrastructure: hospitals, schools, water treatment plants and power plants. The most conservative estimates place civilian death tolls at 17,000 but a more realistic number is closer to 100,000.

    The resolution granting Bush authority for military action in Iraq (Joint Resolution 114) requires that Bush provide Congress evidence that Iraq had WMDs. So far this has not been proved.

    This war is also immoral. The US responded to Japan’s “preemptive strike” with justifiable outrage and it properly elicited a US declaration of war. But now the very thing that justified our participation in WWII (Japan’s preemptive strike) we now use as justification for this war. Using Bush’s theory of preemption no country is safe.

    It is immoral because every excuse Bush has used to draw us into this war has been proved a lie. That the American people are not outraged by all this lying is even more stunning than the lies themselves.

    Sorry, I have yet to see Pres. Hinckley say he supports the war in Iraq. In October 2001 he said (referring to the attackers of 9-11) “The terrible forces of evil must be confronted and held accountable for their actions.� This was long before anyone started talking about attacking Iraq. In the April 2003 General Conference he said “ When all is said and done, we of this Church are people of peace…This places us in the position of those who long for peace, who teach peace, who work for peace.� He does say that the war in Iraq is a continuation of the War on Terror, but I venture that he was mislead (as most Americans may have been prior to the Congressional 9-11 Commission Report). Even his most recent interview with Larry King I saw no endorsement of Bush or his war policy.

    Original intent–no, we cannot know the intent of the Framers. No one can know what another person is thinking or intending, especially 200+ yrs after the fact. Therefore we must look to the meaning of the words alone. Please refer again to the quote by Madison (#37)

    Personhood of the unborn–surely all these lawyers here are aware of the dozens of ways the law acknowledges the personhood of an unborn child–inheritance laws, insurance laws, malpractice, child endangerment (drunk or drug addicted mothers.) etc, etc.

    You know, precedence never works with my kids (“M took a cookie–why can’t I?” “B hit me first!”) why should we allow our presidents such a flimsy excuse for violating law and the Constitution?

  61. #56 “Your purist brand of originalism seems to be a self-defeating suicide pact (so to speak).”

    Hmmmm…..I’m not quite sure what’s so suicidal about pure orginalism. Isn’t it stretching the Constitution beyond all recognition what’s gotten us into so much trouble?

  62. “The UN Security Council specifically forbad US military action in Iraq.”

    I’m not sure this is true. Nor your other statements.

    The phrase The Constitution is not a Suicide Pact has come to represent the proposition that the Constitution should not be interpreted in ways that would lead to the end of constitutional government. The usual example given is Abraham Lincoln’s suspension of the writ of habeas corpus at the beginning of the Civil War before Congress was in session. Whatever you think of the example, there’s a lot of truth to the principle. So when I say originalism is not a suicide pact, i mean that originalists should not insist on 100% pure originalist interpretations of the Constitution RIGHT NOW because (1) there’s no chance of that and (2) it will discredit originalism with the public. So, for instance, calls for President Bush’s impeachment on the debatable grounds that Congressional approval was not technically a declaration of war will, wrongly probably, sound kind of kooky to the public and convince them that the whole idea of returning to the original meaning of the Constitution is kooky.

    I think people who really are devoted to the Constitution have to swallow their pride and their purism and try to bring back as much of it as they can. Compromise hurts, but the heart that this Constitution-true will accept the pain.

  63. Adam: Lincoln’s suspension of the writ at the beginning of the Civil War is an exceptionally bad example. It was almost certainly unconstitutional, since the power to suspend the writ is included in Article I, which deals with Congressional power. Makes good sense to say that Congress not law enforcement should decide when to suspend the writ. Furthermore, there was no real necessity for Lincoln act as he did. His nominal excuse was that Congress was not in session. The reality, however, is that most of the Congressmen were in the Capital when he suspended the writ. Congress, however, had adjourned and could not reopen until either the date that it had specified in its adjournment resolution or else until the President called a special session. If Lincoln had called a special session in spring of 1861 when he suspended the writ for the first time, there would have been a quorum in DC and Congress could have legally suspended it. Lincoln, however, did not want to head ache of dealing with Congress, particularlly as he thought that it would be a short war, which he was hoping to have mopped up before the abolitionists and their fellow travellers in Congress could turn the rebellion into an anti-slavery crusade.

  64. You’re right, I stand corrected. I was cutting and pasting and did not realize I’d put “the Security Council” into that sentence. The Security Council did not forbid war, but the Charter does.

    Please point out what other statements here are false.

  65. “Lincoln’s suspension of the writ at the beginning of the Civil War is an exceptionally bad example. It was almost certainly unconstitutional . . . ”

    Nate, you could be right that the survival of the Union and the Constitution did not require Lincoln’s suspension of the writ. I’ve read a lot of scholarly brawling about it. But it’s the traditional example.

    More to the point, you’re saying that “it was almost certainly unconstitutional . . . ” kinda begs the question, don’t ya think?

  66. Charlene,

    Such thirsting for the blood of Bush using such weak arguments vis a vis the U.N. Charter is troubling. Name one leader in the U.N. who has gone to the Security Council before invading another country like Bush did.
    Chirac didn’t when he went into the Ivory Coast. Neither did Russia when it went into Chechnya. Why do you use arguments from organizations that only set up rules to control the U.S.. How many enemies of the U.S. give the Geneva Convention a second thought. Not that I’m giving approval to torture, but if your argument is that we can’t expect the enemy to treat our soldiers appropriately if we don’t treat theirs right – forget it. They don’t care about their soldiers and they don’t care about the U.S..
    There is only one document that can be applied and that is the Constitution. However, since everyone was blaming Bush for 9/11, and not Clinton who had the opportunity and not the guts, what would have been your reaction if he had sat on his hands and did what Clinton did – nothing, all in the name of being peace loving.

  67. Why is it that only a Canadian will run to Bush’s defense on this site? A CANADIAN!

    Thanks, Larry.

  68. Oh my my my! This is amazing! Surely you don’t consider accusations with no foundation in fact to be a “defense”??

    I have never blamed Bush–either directly or by inference–for the attacks of 9-11.

    Nowhere have I asked for Bush’s blood. In fact, I’ve limited my discussion of Bush to facts about him, no opinion whatsoever about how Bush should be treated.

    Nor did I say or imply “we can’t expect the enemy to treat our soldiers appropriately if we don’t treat theirs right” nor anything like unto it. I don’t believe that I’ve said a word about how our soldiers should be treated.

    As I said before, precedence is no excuse for law breaking. (In this argument for precedence it appears we’re ignoring the fact that Chechnya is not a sovereign nation, which is why Russia is taking the action it is. And if I remember right both the US and France sent troops into the Ivory Coast, ostensibly to protect their citizens.) Either we are a country that values the rule of law or not. Either we have an independent standard of right and wrong or we don’t.

    I find the UN as distasteful as the next patriot, but since we are a signatory we have an obligation to either abide by our agreements or formally withdraw. It is a mockery of the rule of law to try to play both sides of the game–either it’s a legitimate organization to which we are party or it’s not and we withdraw membership and funding.

    This discussion began with a question of how to interpret the Constitution. It appeared to be a measured and logical discussion. I find this sudden turn in the debate both surprising and out of character for those I’ve been reading here. I’m truly sorry it’s taken the turn that it has.

  69. Charlene, why isn’t precedent important?

    Should we invalidate all laws that were signed by Kennedy, because Nixon should have won the election? Get rid of all the treaties he signed? Remove him from the history books?

    Give the land back to the Indians? Restore the Stuarts to the throne? Rather, restore the Anglo-Saxon house of Wessex to the throne? Force the South to secede, since Lincoln was a little dodgy in the way he ran the war? Ship the African-Americans back to Africa? Do reparations for them? Give the Loyalists their land back?

    The point is that you’ve got to pick and choose your battles. Sometimes settled things are best left settled. That’s what precedent is all about.

  70. Nate,

    Don’t have hardly any time to play here, today, but in regards to your comment about the 5th amendment only applying to the federal government, that is correct. The problem is that the government (via the USSC) got into the Roe v. Wade mess in which they decided that an unborn child wasn’t a person and has no right to due process. Which is why my argument that the 5th amendment should protect the unborn, but the federal government thinks otherwise.

    The federal government has basically ignored the Bill of Rights, particularly the 10th amendment. And our current leadership is the worst. Just look at the Patriot Act, for instance.

    Doesn’t that make you wonder why it’s almost impossible to find the Preamble on any texts, anymore. I’ve NEVER heard of it being taught in the public schools. Most teachers, even history teachers, don’t seem to even know that it exists.

    This may be my one and only post, today, since I’m quite busy.


  71. I guess we have a misunderstanding of the word “precedent”. If the US rewrites or amends treaties or laws then we abide by the most current one. Restoring the Anglo-Saxons? Why? Everyone swore fealty to the new rulers, (perhaps a bit coerced) giving the new gov an air of legitimacy. South secede? That’s silly–they Southern states were all formally readmitted after ratifying the 13th and 14th amendments. These new oaths of allegiance nullify any former grievances. Not quite sure what you’re saying about Kennedy and Nixon–Nixon conceded the election, making Kennedy a legitimate president. (Gore and Kerry also conceded, so Bush’s “legitimacy” is also not an issue.) These things were “settled” with a some sort of understood agreement, some patina of legality.

    The way I’m seeing precedence used is found in #44 “If Bush is a war criminal, by virtue of the Constitution, then so are many of the presidents of the 20th century. My problem with calling him a war criminal is that he is being judged by a document that no other leader in the world is being judged by…” He is arguing from precedence, saying that other presidents got into a war without a Congressional declaration of war, so Bush should get a free pass too. Sorry, thousands of people get away with murder (literally). That does not nullify laws against homicide, nor does it limit our capacity to prosecute murderers.

    Or as in #50, John admits that much of what Congress does is not authorized by the Constitution, but that’s OK, because the “government has expanded” (note the passive voice, as if the gov is some self directing creature) “and as new responsibilities have arisen” (again, the passive voice) Congress somehow discovered their “basis” (not authority, just a “basis”) to support this miraculously expanding gov. John is also claiming precedence justifies the Congress to act as it has, he just uses a passive voice to do it. Just because a Congressman finds himself handed a gov that has exceeded its enumerated powers does not give him “power” to continue expanding those powers.

    In neither of these examples is there even a patina of legality, merely an apathetic acceptance of the inevitable. And when someone objects, the answer is “everyone else is doing it, so just play along”. If we think it doesn’t really matter whether or not Congress declares war, then let’s amend that silly requirement out of the Constitution. If we think Congress should have unlimited powers, then let’s amend those bothersome enumerated powers out of the Constitution. If we think there’s anything even moderately legal with what the nation’s leaders are doing, let’s at least rouse ourselves from our stupor and alter our Constitution to make it official.

  72. Jay: I am sorry but your due process argument about abortion is nonsense. There are many problems with the Court’s abortion jurisprudence (chief among them being the fact that it refuses to acknowledge its Second Amendment roots), but the idea that unborn children are deprived of life, liberty, or property without due process of law is not among them. You are missing the fundamental distinction between private action and state action. With one notable exception (slavery) private action does not directly violate the constitution. Only state action can violate the constitution. Let me give you a simple example: Laws against murder are not constitutionally required, generally speaking a murderer does not violate the constitutional rights of his victim.

  73. Charlene: Even if your reading of the constitution is correct (which I doubt), you are funadmentally confused about legality and criminality. Only a small subset of illegal behavior is criminal.

  74. “More to the point, you’re saying that “it was almost certainly unconstitutional . . . â€? kinda begs the question, don’t ya think? ”

    The only decent argument I have ever heard for why suspension is not a congressional authority is one based on the legislative history of the clause. It was added by the Committee on Style, and apparently no one debated its proper location. Hence, some have claimed that its placement in Article I is meaningless, and conclude that because the text is written in the passive voice, any government authority can suspend the writ, so long as they are acting in times of invasion or rebellion. Personally, I think this argument sucks. No court has ruled directly on the issue (that I know of) so it remains technically open.

  75. Nate,

    Actually, having read many of your posts, I think that you are the one who is speaking nonsense. Charlene, for one, seems to have a much better grasp of the Constitution that you do. Her reading of the Constitution which you doubt is correct is laughable.

    The 10th amendment has been ignored by congress and by the USSC in making Roe v. Wade effectively law. It isn’t law, since rulings of the supreme court do not constitute law, but effectively, it is so. No state can now outlaw abortion. The Bill of Rights was written as a restriction upon the federal government, and the powers not specifically given them are reserved to the states, or to the people. Roe v. Wade took that power from the people, therefore, violating a basic constitutional right.

  76. Jay: The Bill of Rights itself clearly assumes a common law system (see, e.g., the Seventh Amendment). Necessary to that assumption is the notion of stare discisis. Hence, it is a little bit silly to claim that the decisions of the Supreme Court are not law. We aren’t living in France or Germany for crying out loud. This is America! The greatest common law jurisdiction in the history of the world. Of course the decisions of the Supreme Court are law.

  77. Nate,
    You’re missing my point. The Constitution is not a Suicide pact is the argument that actions necessary to maintain Constitutional government are inherently constitutional. Telling me that’s not true in a particular instance because the Constitution does not authorize the action explicitly is begging the question.

    As Nate points out, most of the precedents you dislike have the ‘patina of legality.’ The Supreme Court found that they were part of the Constitution. This is at least as good as the South rejoining the Union as the price of getting the federal troops to leave.

  78. Jay: The problem with your reading is that it elides over the fact that the Fourteenth Amendment’s due process clause is part of the constitution. Now one may argue that it doesn’t mean what the Court said that it means in Roe. (I actually think Roe was wrongly decided.) However, the Fourteenth Amendment does mean that the Tenth Amendment no longer means what you are saying that it means. All powers reserved to the state are subject to the 14th Amendment’s requirement’s of due process and equal protection.

  79. I think I need to note here that although I also think Roe was wrongly decided, I am not making the same arguments as Jay or Charlene. I am indeed mystified at the arguments they are making.

  80. #79–I’ve not said anything was criminal, only illegal. What part of my reading of the Constitution is incorrect? This is the second time I’ve been accused of being mistaken and I’ve asked both times, please point out where I am wrong. I find it interesting that instead of pointing out my errors, I’m personally attacked. (As in #72)

    #83–Where has the SC ruled that the President does not need to seek a Congressional declaration of war? Where has the SC ruled that any of the powers Congress has usurped are constitutional?

    I’m happy to rethink my position given good evidence that I am mistaken.

  81. Charlene,
    I apologize for the inferences I attributed to you. When I addressed your argument about the U.N. I noticed that you were in agreement with Jay, who in #48 called Bush “an immoral murdering tyrant”. I plead guilty to convicting you on the basis of association. Let Jay stand accountable.
    Back to the U.N.. Aside from it’s work with children and “some: aid programs, it has never done what it’s mandate said it should. It is rife with corruption and, in essence, has become an old boys network, where if I give your country aid, you keep some for yourself, give me a little back, and if it makes it to the poor, well, we missed some.
    Your idea of getting rid of it would be great, but it’s not pragmatic in our world.

  82. Charlene: There are basically three different legal issues in prosecuting a war. The first issue is the direction of troops. The second issue is the funding of troops. The third issue is the formal decleration of war.

    Essentially, the constitution commits the first sort of power exclusively to the president in the Commander in Chief clause. The second issue is explicitly committed to Congress through the funding power. The third issue is also committed to Congress.

    It is a well established that the President has the authority to commit U.S. military forces to combat without a formal decleration of war. The first major instance would be the undeclared naval war with France during John Adam’s administration. IOW, this is not some 20th century innovation, but is very nearly as old as the constitution itself.

    I think it is equally well established that Congress has the absolute right to refuse funding for particular military operations, which can effectively halt Presidential military adventures. This is what Congress did in Vietnam and again what Congress did during the 1980s with regard to covert American military involvement in central America.

    A decleration of war is important not because it marks the difference between the legal and illegal use of military force, but because it triggers lots of other legal consquences under both domestic law and international law. Being in a state of war changes the law in a way that the mere use of military force does not.

    Applying this to Iraq, I would say that the President has an absolute right under the power vested in him as Commander in Chief to order U.S. forces into combat anywhere in the world. However, I think that Congress also has an absolute right to halt these military adventures at any time by defunding them. (I don’t think that the Commander-in-Chief power gives the president the right to spend money without congressional authorization.)

    I do not think that the constitution requires a decleration of war as a condition to the legal deployment of American military forces, even deployment to combat in another country.

    The interpretation that I have offered above is controversial, but, I think, thoroughly defensible. I think that it also probably implies that the War Powers Act is unconstitutional (although if interpreted as an exercise of Congressional spending power, I think it may be alright.)

  83. Thank you Nate. Twenty-five years ago I understood those principles. Not having anyone to discuss them with caused them to be forgotten. Thank you.

  84. If, unlike Nate, you think the power to declare war that the Constitution talks about is in certain situations a requirement that Congress assent to the President’s use of force, then things like, I don’t know, Congress’ assent to President Bush’s use of force start to look like they satisfy the Constitution.

  85. The lack of understanding of basic constitutional ideas in this discussion illustrates why textualism and originalism don’t have more broad support. Most people are clueless to the basic issues. If the constitution really is inspired, then perhaps that means we should study it a little bit.

    For those interested in learning more, read Scalia’s essay “A Matter of Interpretation” or Bork’s “The Tempting of America.” Those are essential reading if you want to understand originalism.

  86. The ideas of textualism and originalism apply to all types of interpretation, both statutory and constitutional. Regardless of what you are interpreting, you should not read stuff into the statute or the constitution that is not there. I disagree that “A Matter of Interpretation” is only about statutes and not the constitution.

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