HELP - How do I combat "interpretation" argument?

[Matt Collins]

I need some ammo because I'm getting out of my league on a specific discussion. On another forum I visit I am having a discussion with another person who is not only an attorney, but a deputy AG of a major state.


Here is what my "opponent" has to say:



It is obvious that no amount of information or reason can pry Matt’s mind open to what was obvious to the Founders and has been the soul of the English Common Law, upon which our system of justice is based; it is the role of the judge to interpret the law.

As James Madison said, writing in The Federalist Papers: “[N]o language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately the objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition may be rendered inaccurate by an inaccuracy of the terms in which it is delivered. ... When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful through the cloudy medium through which it is communicated.”

No law can be fully understood until it has been through the crucible of judicial interpretation.

Madison, again: “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”

Alexander Hamilton agreed: “Laws are a dead letter without courts to expound and define their true meaning and operation.”

Only then can we know the full extent of its reach and implications. The same is true of the Constitution. The Founders well knew the function of a constitution is not that of a statute. It is a statement of structure and principle, not a precise statement of the law.

Some Anti-Federalist critics wanted more precision in the Constitution, as the modern day strict constructionists, originalists, original intentists, and textualists ad nauseum. Hamilton was ready for them as well: “Nothing ... can be more fallacious than to infer the extent of any power proper to be lodged in the national government from an estimate of immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, so it is impossible safely to limit that capacity.”

Madison recognized that constitutional understanding could not be reduced to a single postulate and that honest disagreements about the Constitution’s meaning with regard to the proper scope of state and federal authority would never be “free from different constructions by different interests, or even from ambiguity in the judgment of the impartial.”

The Founders understood that because language is imprecise, intentions that are clear to some are not clear to others, unforeseeable developments nevertheless need to be addressed, and legislatures can be swayed into error, the task of interpretation will inevitably demand a judge’s discretion.

[nate895]

I need some ammo because I'm getting out of my league on a specific discussion. On another forum I visit I am having a discussion with another person who is not only an attorney, but a deputy AG of a major state.


Here is what my "opponent" has to say:

Ask him why that is any different at all from the King interpreting the Constitution. After all, in a monarchy, the Royal Court is the highest court in all the land, making the King the highest judge in all of a Kingdom. I mean Kings are never corrupt and looking to expand the power of the people they work for (himself in this case). Since he'll inevitably say that Kings are sole rulers, and therefore they don't have any checks, and that judges have checks because they aren't the sole rulers, ask him who pays the judges.

[powerofreason]

Figures he quotes the ultra statist Hamilton and his Federalist buddy Madison, of all the founders.

[powerofreason]

Ask him why that is any different at all from the King interpreting the Constitution. After all, in a monarchy, the Royal Court is the highest court in all the land, making the King the highest judge in all of a Kingdom. I mean Kings are never corrupt and looking to expand the power of the people they work for (himself in this case). Since he'll inevitably say that Kings are sole rulers, and therefore they don't have any checks, and that judges have checks because they aren't the sole rulers, ask him who pays the judges.

At least in a monarchy you get some benevolent leaders. Whens the last president we had that wasn't a lying, sociopathic, power hungry psycho? The king's right to tax is in dispute as well in a monarchy, creating a much lower threshold where people will start to become pissed off.

[nate895]

At least in a monarchy you get some benevolent leaders. The king's right to tax is in dispute as well in a monarchy, creating a much lower threshold where people will start to become pissed off. Whens the last president we had that wasn't a lying, sociopathic, power hungry psycho?

True, but people tend to not like monarchy, so use that against them.

[WRellim]

What he's MISSING is the area that all lawyers want to pretend doesn't exist, and that is JURY NULLIFICATION.



The original concept was that JURIES were the final say in terms of the law as well as triers of fact.

Judges have, by fiat, usurped that role to themselves. Hence de facto we have erected the "judge" as a philosopher-king (especially since judges are now a wholly owned subsidiary of the ABA - which is, in essence, an monopoly trade-union).

[AggieforPaul]

Point out that Hamilton was for a monarchy, and was against the Bill of Rights. He's right that some of our founding fathers believed in judicial activism. That group was called the federalists. For every federalist argument and writing, there's an anti federalist rebuttal that is far superior logically. Start your research with Jefferson, and quote him in the debate.

[Pericles]

How are those subject to a law supposed to know their rights and obligations under that law if it is subject to any manner of interpretation?

There may well be cases where the facts may not fit entirely within the bounds of a statute, but that means that the case is to be interpreted, not the law.

[powerofreason]

True, but people tend to not like monarchy, so use that against them.

It does gets a bad name these days, but what better way to keep a government on its toes then to give it so little legitimacy that any crap they try to pull will result in a revolt or mass rioting? I'd take a new republic over a monarchy any day of the week, but man, once the laws and regulations start to stack up and democracy rears its ugly head...

[Conza88]

Argument Against the Constitution

* It is impossible to use a State to obtain protection.

* The State is a geographical monopoly on taxes, that is supposed to protect property.

* There is an inherant contradiction: The State is supposed to protect property, yet it necessarily expropriates property. How can an institution which is always the judge, possibly be just? There is a permanent perversion of justice in favor of the State.

o Constitutional courts are part of the institution of the State.
o Inherently, the State will expand its own power.

* How many resources does the State need to produce its "services"?

o On private markets, consumers direct resources.
o The State will use more rather than fewer resources.
o As soon as the consumers do not determine this, the answer will always be the same -- more resources to produce security, while the quality of the work (security) decreases, because the State can tax.

Protection and the Market for Security (lecture 28 of 32) (http://blog.mises.org/archives/002390.asp) - Hoppe

[Conza88]

Tell him... he's obviously not the sharpest stick in the fagot.

[Matt Collins]

Tell him... he's obviously not the sharpest stick in the fagot.HA HA HA HA! :D;) I think that's the first time I've ever heard that word used correctly.

Naaw... we consider each other friends even though we disagree on most things.

[Knightskye]

Tell him if he's okay with one person deciding what the rules mean, he should be rooting for a dictatorship.

[AJ Antimony]

If the Constitution were up for interpretation, then why include the ability to amend it? If a Constitution is up for interpretation, then why have one? If it's there then it's the law, if it isn't then it isn't.

[Conza88]

HA HA HA HA! :D;) I think that's the first time I've ever heard that word used correctly.

Naaw... we consider each other friends even though we disagree on most things.

:) Credit can't go to me though...

It was randy, or gunny or someone.. :( (mental blank)

* Had an insane way with words... lol, and bashed the trolls :confused:

:D

[demolama]

I am by no means an expert.. but I'm still learning :)

Remind the person that it was the states who ratified the Constitution and in a republic the states have the right to interpretation as they are the creator. While the Supreme Court does have the right to interpret the laws, their interpretation has always weighed nothing more than opinions and often ignored by the states. (That was until after the Civil War).

Between 1789 and 1860 the U.S. is riddled with acts of defiance from both the North and South against the federal Judiciary (or federal government in general). Both sides used the principles of nullification, interposition, and even the threat of secession, to ignore federal decrees. Fugitive slave laws, opposition to protectionist tariffs, military conscription into the War of 1812, trade embargoes, etc. were used to justify defiance of federal decrees from either the judiciary or the other branches. How could such a blatant nose thumbing at the federal government be tolerated if supremacy was created?

Lets look at some court cases:

McColluch v. Maryland is the biggest example of states ignoring the judgment of the courts. While the judgment of Marshall's court favored the 2nd Bank of the U.S., many states like Ohio and Kentucky who were taxing the bank out of existence continued to do so after the court's ruling until the Bank bill had ran its course and the banks expired. No one questioned their continuance of the tax. No federal force came in to force the Supreme court's decision.

Worchester v. Georgia is another example. From this we get the famous "John Marshall has made his decision; now let him enforce it!" from Andrew Jackson. But more importantly the state of Georgia refused to honor the decision of the court. Even if Jackson supported the bill under what legal authority could federal troops be used against a state of the republic to force the Supreme's decision?
A question asked during the Whiskey rebellion and even asked up until the civil war.


Must each for itself be guided by its own opinion of the Constitution. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill . . . The opinion of the [Supreme Court] judges has no more authority over Congress than the opinion of Congress has over the judges . . . (Robert Remini, Andrew Jackson and the Bank War, p. 82).

If the founder's had intended the Supreme court to be the final interpreter of the Constitution than why were they so quick to pass the 11th amendment which removed the states from being sued in Federal court? The Chisholm case: where Georgia flatly refused to abide by a decree of the Court and went about filling for a new amendment. To modern Americans one would think the Supreme court would be the place to go to settle disputes but here the states wanted no part of the federal courts.

Quis custodiet ipsos custodes? How can the federal courts function as impartial umpires between the federal government and the states when they themselves are part of the federal government? If the federal courts were to have all the weight as Mr. Marshall said they did then why did so many pre-civil war state constantly ignore its decree?

But lets refer to the founders as your opponent has done. Hamilton and Madison the authors of the Federalist are the only ones there who knew what the federal convention wanted right?

John Taylor using Robert Yate's notes from the Convention argued that the federal convention removed all powers to negate laws over the several states. That any references to a national or supreme (other than naming the highest federal court "the supreme court" and supremacy clause) were rejected by the convention.


Congress is empowered "to constitute tribunals inferior to the supreme court," (emp. added) demonstrating the true relation between the words "supreme and inferior," repeated in the judicial article; and evidently excluding the idea, that Congress could make state courts inferior to the supreme federal court, any more than it could make state legislatures inferior to the federal legislature. The states derived their judicial, as well as their legislative and executive powers, from state sovereignty. All the arguments extracted from the supposed inconveniences likely to be produced by the clashing of state and federal judicial powers, in order to justify an appellate supremacy in the latter, apply with more force to the justification of a supreme controlling power in the federal legislature and executive, over the state legislatures and executives; and if federal laws can confer a supreme power on one of its departments over the correspondent state department, they may confer a similar supremacy upon all. John Taylor's New Views of the Constitution pg. 154

Thus you give the power of one branch of the federal government to rule over the states and you de facto allow all branches to rule over the states.


There would have been a manifest absurdity in coupling a supreme national judiciary with a legislature not national, as it would not have corresponded, either with the national government proposed, or the federal government adopted. Such a supreme judicial power, might have extended or diminished state powers, against the will of Congress and the president, and these powers would have lost the protection, designed by the Virginia plan for a national government, to be derived from its proposed general supremacy. By an exclusive judicial supremacy, federal, as well as state powers, would have been made subordinate to judicial power. Therefore, when the projects for a national form of government were given up, the supremacy contemplated by them, for national legislative, executive, and judicial departments, was relinquished, and no supremacy over the powers reserved to the states, was incongruously given to a judicial department, exclusively of the other two. John Taylor's New Views of the Constitution pg. 155


"Being an essential principle for preserving theoretical liberty, used by the Federal constitution, it never could have designed to destroy it, by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments, or at least of the most important" John Taylor's Tyranny Unmasked pg. 198

John Taylor's New Views of the Constitution http://www.constitution.org/jt/jtnvc.htm is the best place to start to answer back these claims. The whole book is dedicated to renouncing the idea that the founders created any supremacy over the states of the republic and goes into the Federalist papers and contradicts their claims.

Its a very dry read.. but a very very important one.

[Brian in Maryland]

Maryland Constitution
DECLARATION OF RIGHTS

Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.


a document about jury nullification
http://www.fija.org/docs/state_language_on_jury_nullification.pdf

from http://fija.org/
(Fully Informed Jury Association)

It looks like other state constitutions have similar protections, certainly trial by jury and due process of law. The judge's purpose is to protect the constitution. Check your state Bill or Declaration of Rights.

Lex rex not rex lex. (The law is king not the king is law)

And while I'm here, Sic semper tyrannis!
http://www.netstate.com/states/symb/seals/images/seal_va.jpg

[Matt Collins]

his response:



my point, quite obviously, was to demonstrate that there is no singular, original intention expressed in the constitution. I illustrated it by giving the views of two of the founders with respect to the role of the judiciary. It is a role well understood at the time, by the way. Judicial interpretation is nothing like a king declaiming the law. It is a process as old as law itself.

Your point that hamilton was against the bill of rights is wildly off the mark if you mean to suggest that he was hostile to the rights themselves. He feared that these rights were self evident and that listing some, but not all would be interpreted as a restriction or limitation on the rights of man. To some extent your insistence that if it’s not in the constitution it doesn’t exist justifies his concern.

Finally, you completely misunderstand the role of a jury. It is absolutely notot the role of a jury to declare what the law is. That is the province of the court. A jury is the trier of fact. The jury determines what facts have been proven during the course of the trial. The judge then instructs the jury on what the law requires them to do based on the facts as they have found them. Jury nullification comes into play when the jury refuses to follow the judge’s instructions.

[nate895]

his response:


It is the duty of anyone who has the power to resist unjust laws. If you are a juror and convict someone of something that shouldn't be a crime, you are just as responsible as the man who wrote the law.

[demolama]

Point to the case of John Peter Zenger:

English law at the time, which was designed to protect the government from critical elements, dictated that truth was not a defense to libel. His writing was highly critical of the royal governor of NY. Obviously via law he should have been found guilty because he criticized the government, something that was against the law.

If the jury had followed the law and obeyed the judge then the freedom of press would not have been founded.

[jabrownie]

He left an opening for you to win if you pound the jury nullification point. His response of what the jury 'is supposed to do' is the classic oft-repeated line; but there's not much meat behind it. His very last sentence describing what jury nullification is shows that he probably doesn't know much about it and has never studied it to any serious degree. It seems that he thinks it is when the jury acts in a "bad" manner and does something they are not supposed to do.

As you know there's a lot of quotes and history behind jury nullification. Walk him along and educate him about it. If nothing else, since he's an assistant AG it would probably be good to expose him to the principle regardless of the argument. But since he set it up as being something that is traditionally outside the realm of what a jury should ever do, it should be simple enough to walk go over the long history, the rational, the historic cases where it was done, and the founding quotes in favor of it to show that it is a core part of their duty to act in such a fashion and overrule the judge if need be.

Best of luck with it.

[Theocrat]

How can judges rightly interpret laws which they did not write without referring to the original intent of the person(s) who scribed the law? That seems pretty presumptuous for any judge to do so. It would be similar to a person who interprets Congressman Paul's book The Revolution: A Manifesto as a guide for encouraging anarchy without consulting Dr. Paul himself about what his meaning and intent was for writing the book.

[surf]

pound him on jury nullification. w/o reading all the responses here, this is the source of "freedom of the press" and "freedom of religion."


Congress shall make no law....

ask the bitch to interpret that

i get disgusted when lawyers seem to think that they, primarily because they are lawyers, no more than "common folk." Jury nullification is instructed to jurys these days as a "non-starter." i was called for jury duty and kicked off both juries i could have sat on because i said the laws were bogus (drug cases). in fact, as the entire jury pool was gathered in a room we were shown a video narrated by Raymond Burr in which he flatly states, "you are not to pass judgement on the merits of the law, only to rule on the facts of case..."

f#ck Perry Mason

[WRellim]

his response:


Finally, you completely misunderstand the role of a jury. It is absolutely notot the role of a jury to declare what the law is. That is the province of the court. A jury is the trier of fact. The jury determines what facts have been proven during the course of the trial. The judge then instructs the jury on what the law requires them to do based on the facts as they have found them. Jury nullification comes into play when the jury refuses to follow the judge’s instructions.



Actually it is HE who does not understand the role of the jury.

His position is the modern one taught in ABA "law" schools (which are a relatively recent invention).


The original concept was that JURIES were the final say in terms of the law as well as triers of fact, this was a CRITICAL part in the system of checks and balances in the American colonies, predating the Constitution.



Thomas Jefferson also said (Notes on Virginia, 1782 -- decades before Marbury, and years before the Bill of Rights or the Constitution):
...it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.
cf http://www.friesian.com/nullif.htm -- an excellent page on the subject, btw.

Conversely, even the concept of "judicial review" of "constitutionality" came significantly AFTER the Constitution.

Marbury vs. Madison did not occur until 1803 -- and the statement that the it was the "judiciary" which controlled the province of what was or was not the law was an assertion usurpation[/U]] made by the Marshall court.

BTW, Jefferson vehemently disagreed with the Marshall court's ruling, believing that if such power were centered in judges rather than juries, it would be "placing us under the despotism of an oligarchy."

And IMO, time has proven Jefferson right in his fears, without judicial sanction, ALL of FDR's overreaching unconstitutional "socialist/fascist" programs would have died early deaths, but the Supreme Court, desiring to maintain their "special place" (as oligarchs) within the federal government, caved to the desires of a tyrant.

Truth is that Judges have, by simple [I]fiat, usurped that role of "judging the law" to themselves ...and then proceeded to perpetuate it in every way possible, via rulings, court rules, and themselves teaching it in the so called "law" schools. Hence de facto we have erected the "judge" as a philosopher-king (especially since judges are now a wholly owned subsidiary of the ABA - which is, in essence, an monopoly trade-union).

In fact, to make matters even sicker, the Supreme Court, under conditions and parameters that it basically pulled from its own arse, has even gone to the point of denying the right to trial by jury (something definitely NOT in it's constitutionally mandated power to do).


Lawyers go along with all of it because:

a) they were "trained" that way (and I do mean "trained" in it's most derogatory sense, as with a dog);

b) as "officers of the court" they are bound by "rules of the court" (made again, by judges; re: other lawyers) to go along with the status quo; and

c) that status quo is primarily concerned with maintaining power of lawyers as a group (again, a monopoly trade union) rather than their clients or to society.

d) their livelihood AND status in our society are entirely dependent upon the "obeying" ALL of the above.


Less than 1 in 1000 lawyers will EVER admit that, but it is true nonetheless.

[WRellim]

An additional article states the REAL tradition quite clearly. (Especially take note of the trials of William Penn and Edward Bushnell -- circa 1670 -- hundreds of years before John Marshall's usurpation in 1803, and even THEN courts not only recognized JURY nullification, and indeed -- until an 1895 Supreme Court ruling ex nihilo (actually ex anus) -- judges were required to instruct juries of their right and responsibility to judge both law AND fact, a practice which continued will into the 20th century. Modern judicial DENIAL of jury nullification is actually VERY recent, dating only from the 2nd half of the 20th century, mainly centered around draft cases during the Vietnam war, a poor progeny if ever there was one.)

The Magna Carta was a great step forward in the control of tyrannical leaders. But its sole means of enforcement, the jury, was often met with hostility. By 1664 English juries were routinely being fined for acquitting defendants.

Such was the case in the 1670 political trial of William Penn, who was charged with preaching Quakerism to an unlawful assembly. Four of the twelve jurors voted to acquit – and continued to acquit even after being imprisoned and starved for four days. Under such duress, most jurors paid the fines. However, one juror, Edward Bushell, refused to pay and brought his case before the Court of Common Pleas. As a result, Chief Justice Vaughan issued an historically-important ruling: that jurors could not be punished for their verdicts. Bushell's Case (1670) was one of the most important developments in the common-law history of the jury.

Jurors continued to exercise their power of nullification in 18th-century England in the trials of defendants charged with sedition, and in mitigating death-penalty cases. In the American Colonies, jurors refused to enforce forfeitures under the English Navigation Acts. The Colonial jurors' veto power prompted England to extend the jurisdiction of the non-jury admiralty courts in America beyond their ancient limits of sea-going vessels. Depriving "the defendant of the right to be tried by a jury which was almost certain not to convict him . . . the most effective, and therefore most disliked" of all the methods used to enforce the acts of trade. (Holdsworth, A History of English Law (1938) XI, 110)

John Hancock, "the wealthy Massachusetts patriot and smuggler who as President of the Continental Congress affixed his familiar bold signature to the Declaration of Independence" was prosecuted via this admiralty jurisdiction in 1768 and fined £9,000 – triple the value of the goods aboard his sloop "Liberty" which had been previously forfeited. (U.S. v One 1976 Mercedes Benz 280S 618 F2d 453 [1980])

John Adams eloquently argued the case, chastising Parliament for depriving Americans of their right to trial by jury. [B]Adams later said of the juror, "it is not only his right, but his duty – to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." (Yale Law Journal, 1964:173)

Earlier in America, jury nullification decided the celebrated seditious libel trial of John Peter Zenger. (Zenger's Case, 1735) His newspaper had openly criticized the royal governor of New York. The current law made it a crime to publish any statement (true or false) criticizing public officials, laws or the government in general. The jury was only to decide if the material in question had been published; the judge was to decide if the material was in violation of the statute.

Zenger's defense asked the jury to make use of their own consciences and, even though the judge ruled that the truth was no defense, they acquitted him. The jury's nullification in this case is praised in history textbooks as a hallmark of freedom of the press in the United States.

At the time of the American Revolution, the jury was known to have the power to be the judge of both law and fact. In a case involving the civil forfeiture of private property by the state of Georgia, first Supreme Court Justice John Jay, instructed jurors that the jury has "a right to determine the law as well as the fact in controversy." (Georgia vs. Brailsford, 1794:4)

Source: http://www.isil.org/resources/lit/history-jury-null.html

[Matt Collins]

His second response:



Sigh. A little knowledge is a dangerous thing. Search a little deeper. You will find that it remains the duty of the judge to instruct the juries in the law. Once instructed, the juries can determine innocence, guilt, or liability as consistent with the facts they have found. They are not free to simply to make up the law to suit their whim. Although, somewhat, but not altogether anomalously, juries have the power to render any verdict they choose, which, as already mentioned, includes the power to nullify the court's instructions.

It is apparent that you believe jury nullification is the same as the duty of the court to interpret the law-- which it isn't-- and a good thing, which is an open question, so let's talk about that. In a civilized society the law, not men, should be King. Where it is otherwise, tyranny reigns supreme. Nullification has both the power to steer the law back to its proper course, where the legal punishment for certain crimes is itself so abhorrent that conscientious jurors feel morally compelled to acquit, though the evidence is sufficient to convict. Rarely used, this is a good thing. On the other hand, the history of our country is replete with tails of juries convicting the innocent on very thin or contradictory evidence, particularly if the defendant is black, or some other minority. This is a bad thing. The biblical account of popular verdict on the life or death of Jesus is a good, albeit metaphorical, example of the dangers inherent in jury nullification. Ultimately, of course juries can do what they will. But that is a description of their ultimate power. Making up the law to suite their transient whims is NOT what juries are about. It is their primary duty IN ALL STATES to find the facts and follow the law.

But we are a long way from where we started with judges interpreting the law.

[demolama]

can't convert a member of the BAR... it would make their entire life pursuit meaningless if they agreed with you

[Imperial]

It is obvious that no amount of information or reason can pry Matt’s mind open to what was obvious to the Founders and has been the soul of the English Common Law, upon which our system of justice is based; it is the role of the judge to interpret the law.

I will get to the judge part in a second. However, the system of English Common Law was, though adopted partly, was rejected in others. The written Constitution was first developed so that laws could not be changed at whim by an overbearing Parliament of some sort.


As James Madison said, writing in The Federalist Papers: “[N]o language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately the objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition may be rendered inaccurate by an inaccuracy of the terms in which it is delivered. ... When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful through the cloudy medium through which it is communicated.”

The Constitution is not that elaborate. It is true any law should be thoroughly examined. Further scrutiny should be required for any law that has been made in later times; however, when dealing with the original Constitution and Bill of Rights most shady clauses were debated already. Their intent has been illustrated in their writings and deliberations. I would advise your opponent to read up on the actual debates in the Constitutional Convention and during ratification. This doesn't mean that their meaning shouldn't be applied to other circumstances; instead, it means the courts must understand that new meanings shouldn't be conjured for changing circumstances, only that we must learn how old meanings apply today.


No law can be fully understood until it has been through the crucible of judicial interpretation.

Madison, again: “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”

Once again, the original Constitution and Bill of Rights clearly passed this crucible of discrimination of intent and purpose.


Only then can we know the full extent of its reach and implications. The same is true of the Constitution. The Founders well knew the function of a constitution is not that of a statute. It is a statement of structure and principle, not a precise statement of the law.

Is not any law a statement of structure and principle? And if the Constitution, not being law, is not legally binding, what basis is there for any citation of the Constitution by the Supreme Court? This turns the Constitution from a requirement to a recommendation. The structure provided would be totally imploded when lacking any teeth or fiat of enforcement. Furthermore, if the Constitution is our guiding principle, how can one justify eroding those principles with un-intended meanings?


Some Anti-Federalist critics wanted more precision in the Constitution, as the modern day strict constructionists, originalists, original intentists, and textualists ad nauseum. Hamilton was ready for them as well: “Nothing ... can be more fallacious than to infer the extent of any power proper to be lodged in the national government from an estimate of immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, so it is impossible safely to limit that capacity.”

There is no reason that the powers given to the federal government cannot be limited. It is illogical to think that limits equal denying a certain end. Instead, we must realize limits deny certain means. For example, government can issue bonds rather than inflating a fiat currency to finance a war. While the latter would years ago be considered unconsitutional, the former is understood as a typical means to financing a conflict, the end. Furthermore, without limitations, what actually prevents the growth of the scope of government? A coercive force as government is supposed to be checked by placed limits upon it. Without limits and any enforcement fiat of the Constitution, the principles expounded by the Fouding Fathers are threatened.


Madison recognized that constitutional understanding could not be reduced to a single postulate and that honest disagreements about the Constitution’s meaning with regard to the proper scope of state and federal authority would never be “free from different constructions by different interests, or even from ambiguity in the judgment of the impartial.”

A judge's decision is regarded as a consensus. It is treated as legitimately impacting the status of a nation's legal system. Why change the Constitution when it was a document reached by consensus of the nation's leading figures and Founding Fathers, including Hamilton and especially Madison. The ultimate purpose of courts in my view would be to evaluate laws made after the Constitution and Bill of Rights and how certain actions are applicable to those laws and our prior "guiding principles".

[mport1]

Argument Against the Constitution

* It is impossible to use a State to obtain protection.

* The State is a geographical monopoly on taxes, that is supposed to protect property.

* There is an inherant contradiction: The State is supposed to protect property, yet it necessarily expropriates property. How can an institution which is always the judge, possibly be just? There is a permanent perversion of justice in favor of the State.

o Constitutional courts are part of the institution of the State.
o Inherently, the State will expand its own power.

* How many resources does the State need to produce its "services"?

o On private markets, consumers direct resources.
o The State will use more rather than fewer resources.
o As soon as the consumers do not determine this, the answer will always be the same -- more resources to produce security, while the quality of the work (security) decreases, because the State can tax.

Protection and the Market for Security (lecture 28 of 32) (http://blog.mises.org/archives/002390.asp) - Hoppe

+1

[wizardwatson]

His second response:


Read some Lysander Spooner then go to town on him. The Constitution is not the basis of the law, so I don't see why he's making that connection in his first response. And in his second response he contradicts himself by saying first, "In a civilized society, the law, not man, should be King." Ok, so the judge is not a man?

Read "Essay on the trial by Jury" and "No Treason" by Spooner, it will give you a lot of insight.

[wizardwatson]

my point, quite obviously, was to demonstrate that there is no singular, original intention expressed in the constitution. I illustrated it by giving the views of two of the founders with respect to the role of the judiciary. It is a role well understood at the time, by the way. Judicial interpretation is nothing like a king declaiming the law. It is a process as old as law itself.

Your point that hamilton was against the bill of rights is wildly off the mark if you mean to suggest that he was hostile to the rights themselves. He feared that these rights were self evident and that listing some, but not all would be interpreted as a restriction or limitation on the rights of man. To some extent your insistence that if it’s not in the constitution it doesn’t exist justifies his concern.

Finally, you completely misunderstand the role of a jury. It is absolutely notot the role of a jury to declare what the law is. That is the province of the court. A jury is the trier of fact. The jury determines what facts have been proven during the course of the trial. The judge then instructs the jury on what the law requires them to do based on the facts as they have found them. Jury nullification comes into play when the jury refuses to follow the judge’s instructions.

It is obvious from reading this claptrap that your friend's mind has been poisoned by the current state of our ABA infested legal system. Read the history of the ABA and learn about how they have monopolized the practice of law which was unheard of before the late 1800's.

The law is not difficult to understand. I think one could get the basics of legal procedure and the basics of common law, and the difference between criminal and civil law, in relatively short order.

[wizardwatson]

I think what everyone is missing is that the Constitution is not a valid contract. It has no real legal authority. Thus "judicial interpretation" is a "theory-based" approach to 'interpreting' statutory law (constitutional law), which is illegitimate outside of a contractual arrangement such as organizational bylaws.

So "judicial interpretation" of the constitution is a basically the judges accepting that politicians can pass laws giving some fictional entity the "government" rights that individuals can or do violate. Like not paying taxes for instance.

Point is, "judicial interpretation" of statutory law outside of legitimate contracts like bylaws is illegitimate and thus contrary to true law.

You just need to get much more libertarian with this guy. The whole in his argument is that the Constitution has no authority, it is not a valid contract.

He will likely tell you though, that "this is simply what government is" which is incorrect, and you'll have to fight from a minority position.

Which is fine, because real law, "natural" law, is all about defending the minority.