Literal interpretation of Constitution not practical

Ventura County Star (California) ^ | 10/01/06 | Scott Harris

[kiriath_jearim]

Brilliant and thoughtful men wrote the U.S. Constitution. They understood the challenges of creating a document that dealt with specific issues of the time and unforeseen issues in the future. They developed a means of modifying the Constitution to reflect change (amendments) and predicted the necessity for these changes.

If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.

— George Washington, first president of the United States and Founding Father

We have used the amendment process as it was intended to right grievous wrongs, none more important than in granting voting rights to blacks (15th Amendment, 1870) and to women (19th Amendment, 1920).

This is why it is particularly painful and frustrating to watch both the left and the right pervert our first two amendments to their own political and ideological needs.

Bill of Rights, Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Leaving the discussion of freedom of speech for another essay, let us focus on "establishment of religion." Activist judges, in conjunction with atheists and secularists, have used a letter written in 1802 by Founding Father Thomas Jefferson to the Danbury Baptist Association, which included the phrase "building a wall of separation between church and state" to support their effort to eliminate God from the public sector.

No rational person believes this was the intention of the Founding Fathers. Their goal was to prevent, understandably and correctly, the establishment of a state religion, not to deny our Judeo-Christian heritage.

Religion ... [is] the basis and foundation of government ... before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the Universe.

— James Madison, fourth president of the United States and Founding Father

It is a perversion of the Constitution, the First Amendment and the intentions of the Founding Fathers to attempt the removal of God and religion from the public sector. It is ridiculous and intellectually dishonest to think the Founding Fathers would have eliminated "under God" from the Pledge of Allegiance, stripped Christmas decorations from the front lawns of government buildings, eliminated Christmas parties at schools, or insisted that Easter breaks be called spring breaks.

However, the right is no less guilty for the way it distorts the Second Amendment.

Bill of Rights, Amendment II:

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.

We hear the term "right to keep and bear arms" from the right as frequently as we hear "separation of church and state" from the left. They are equally wrong. The Founding Fathers did not have the luxury of, or the desire for, a standing army, so a well-regulated militia was necessary for the security of our young country. This is clearly and obviously no longer true, which severely impacts the relevance of the Second Amendment and is never mentioned by the pro-gun right.

Rational people can discuss how to balance our Judeo-Christian heritage with our need to avoid a modern version of Henry VIII's Church of England. Eliminating God and religion from our public and private lives is as dangerous as fostering a state religion.

The same people can discuss gun control and reach a reasonable conclusion. It is no more logical to ban all handguns and hunting rifles than it is to justify private ownership of an Uzi or fight reasonable efforts to license guns and monitor their purchase.

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

— James Madison, fourth president of the United States and Founding Father

In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable. Common sense and leadership must take precedence over party politics and ideological bickering.

Can one generation bind another and all others in succession forever? I think not. The Creator has made the earth for the living, not the dead.

— Thomas Jefferson, third president of the United States and Founding Father

Let us, the living, work together to find common ground that makes sense for all Americans. It will require listening, compromise and a willingness to sometimes subvert our personal desires to the public good — a lesson we should have learned from our Founding Fathers.

— Scott Harris, of Thousand Oaks, is president of California: The Alpha State. E-mail: scott@alphastate.org. His blog can be seen at AlphaState.com, where his radio show can also be heard.

[kiriath_jearim]

If we follow Mr. Harris's logic, technically we should not allow press freedoms for the electronic news media because "freedom of the press" referred to the print media available in the late 18th-century. Therefore, freedom of the press should be allowed only to those publications that are created by letters carved onto wood blocks which are then coated with ink and pressed onto paper.

[camle]

literal interpretations ARE not practical - when you're trying to weasel your way around it!

[sittnick]

We hear the term "right to keep and bear arms" from the right as frequently as we hear "separation of church and state" from the left.

"right to keep and bear arms" is in the Constitution. "Separation of church and state" is not.

If we no longer need the 2nd Amendment, as the writer points out, amend the Constitution!

[K-oneTexas]

Does away with the NYT.

[KarlInOhio]

the right of the people to keep and bear Arms, shall not be infringed.

The authors of the Constitution knew what they were talking about. If they meant the "right of the state" or the "right of the militia" to keep and bear arms they would have said so. The language clearly states that the people have that right.

[Gordongekko909]

"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."

--United States Constitution, Article VI

We gettin' rid of that one too?

[Little Ray]

Actually, by the time of the American Revolution, something called movable type had been invented. Credit for this generally goes to a fella named Gutenberg, who invented it in the 1440's.

That said, if there's something wrong with a literal interpretation of the words of the Constitution, then it can be fixed. Its called an Amendment. Also, If you have problems with the literal interpretation of the Constitution, the Founding Fathers left a exhaustive body of correspondence detailing EXACTLY what they meant - called the Federalist Papers.

As for the Second Amendment, both the Federalist Papers and the personal statements and quotes of the founding father leave no doubts as to which side of the issue they come down on (individual right).

[Question_Assumptions]

See Robert Borks, The Tempting of America

[BenLurkin]

Exactly!

And there is further proof of this intention in the language of the Tenth Amendment which clearly demonstrates that rights rest in the people (and the States) and the Federal Government only holds those powers specifically DELGAED to it.

Tenth Amendment - Reserved Powers

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[Man50D]

In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable. Common sense and leadership must take precedence over party politics and ideological bickering.

The very purpose and existence of the Constitution is to ensure the laws of the land are to be followed literally. Changing such laws with out following the procedure to do so becomes a slippery slope resulting in an infinite number of interpretations. In the end there will be no Constitution. Our founding Fathers recognized circumstances may arise they could not foresee and would be necessary to amend the Constitution but must be done in a specific manner. That is the purpose of Article V. If you want to change the Constitution then do so in accordance with Article V.

[headsonpikes]

Literal interpretation of Constitution not practical

Else how could lawyers work their solemn and sophistical magic?

Definitely not 'practical', LOL!

[Question_Assumptions]

The wording of the second amendment, which explains it's primary purpose, makes a lot more sense if you read early drafts of the Bill of Rights. For example, Madison's First Amendment originally only dealt with free speech and said, "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." Madisons right to peaceably assemble originally read, "The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances." George Mason's versions are even more descriptive, though further from what we wound up with.

See this page for the text of various drafts of the Bill of Rights.

[stylin19a]

In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable.

sure...and let's make the 10 commandments the 10 suggestions...

[Skooz]

Literal interpretation of Constitution not conducive to liberalism.

[MosesKnows]

Literal interpretation of Constitution not practical

The Constitution was indeed written by Brilliant and thoughtful men. These brilliant and thoughtful men wrote the Constitution in clear concise English grammar. This allowed the least among us to understand the meaning of the words. All written law is for the expressed purpose of a literal interpretation long after it is written.

The Constitution is not a “flexible” document. The amendment process allows the Constitution to forever reflect who we are and what we are and eliminated any necessity to re-interpret its meanings.

It does give me pause when I consider who these people are who reject the amendment process in favor of their own re-interpretation of the words. If the nation wants a separation of church and state or want the individual to no longer have the right to own a means of self-defense then amend the Constitution. Why do these people fear the words of the Constitution? These people scare me and I may not tolerate them much longer.

[x]

"Literal interpretation" is a tricky phrase. There's always going to be some degree of "interpretation" involved in applying a document to new circumstances. Shouldn't that interpretation be as close to the actual words used as possible, though?

When you read "Congress shall make no law" do you really want to go through contortions to come up with a theory allowing Congress to make those laws?

[Constitution Day]

Please see tagline.

[Gorjus]

Shouldn't that interpretation be as close to the actual words used as possible, though?

Bingo!

The most important words in the Constitution are, "We, the People." It's not written for "We, the lawyers," nor, "We, the landed gentry of Virginia," nor, "We, the elected or unelected bureaucrats of government."

The Constitution is a contract between, "We, the People" and the federal government. We, the People have the right - if we would claim it - to interpret the Constitution where the nature of society has changed in ways that were not envisioned at the time of ratification. For example, if you asked a cross-section of the people whether "the press" as defined in the First Amendment referred to modern electronic media, there would be clear consensus that it does.

However, asking that same cross-section of "We, the People" whether the clear words of the Constitution on something like, "Congress shall make no law," now mean that Congress can make any law it desires, you'd also get a clear consensus that it does not.

And the opinion of the landed gentry of Virginia from a couple of hundred years ago on what they intended for the words to mean should have no more impact than the opinion of you or me or any other of "We, the People" on what the words actually say. Every time we refer to someone other than the people ourselves for authority, we justify those who claim their own opinions (See Ruth Bader Ginsburg, et. al.) are the final authority.

So, the interpretation should indeed be, "as close to the actual words used as possible."

[supercat]

Actually, by the time of the American Revolution, something called movable type had been invented. Credit for this generally goes to a fella named Gutenberg, who invented it in the 1440's.

Had the practice of using movable types to form solid lead plates yet come into common use? Although someone with a quantity of type and some frames could set up pages far more quickly than a person would be able to engrave them, I think it was the production of printing plates from lead type that really made books affordable. Prior to that, one had to print all of the copies of a page that one would ever want fairly soon after setting it up (type was too expensive and scarce to simply leave pages set indefinitely in case they needed to be reprinted).