Turning the Supreme Court into just another political institution

[pjohns]

The Constitution contains areas of anachronistic language and concepts and simply doesn't really address other concepts that have gained importance in the last three centuries.

Really?

In just what areas, precisely, is the US Constitution "anachronistic"?

[pjohns]

Were that strictly true, conservatives would not have been screaming about the "liberal" court and "liberal justices" prior to Trump stacking the court with "conservative" justices.

Such justices may be referred to as "conservative," only in the sense that they reject the "Living Constitution" theory--which is, by definition, liberal.

[T]he fact that you are saying that the Constitution should be interpreted according to its original meaning, as best we can decipher it, implies that there is a problem with anachronism...

No, it implies that the meaning of some words change over time; and we should be quite careful not to project today's meaning upon words written more than two centuries ago.

[Dr. Who]

Really?
fin
In just what areas, precisely, is the US Constitution "anachronistic"?

Section 8: Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Where do the Powers of Congress permit the creation of a Central Bank?

No worries, a little contextual interpretation or if they didn't say we couldn't, then it's not prohibited, resolves the problem:

"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described."

Along with a dash of the Necessary and Proper Clause:

'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'

See Justice Marshall in McCulloch v. Maryland

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;To provide and maintain a Navy;To make Rules for the Government and Regulation of the land and naval Forces;To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

How are the Air Force and Space Force funded according to this mechanism?

It is clear that the Framers wanted no standing Army, yet the government circumvents this by producing a budget every two years. Neither an Air Force, let alone a Space Force was contemplated, yet again this is where contextualist justice in SCOTUS is useful:

"The Army, Navy, and Air Force are comprehended in the constitutional term "armies." Article I, § 8, provides that Congress may "raise and support Armies," and "provide and maintain a Navy," and make "Rules for the Government and Regulation of the land and naval Forces." "

see Justice William Douglas in Laird v. Tatum

(Shouldn't the Militia be called the "National Guard"?)


Second Amendment

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

The US Constitution does not plainly provide a right to self-defense nor does it unambiguously provide a right to carry a gun. Fear not, a gargantuan feat of contextualist interpretation will find a way, as long as you don't read that sentence like a normal person and make sure to drag in as much historical context as possible, with a dash of the most herculean grammatical gymnastics that I have ever seen (curiously unnecessary in the entire rest of the Constitution) and ignore the fact that America now has a standing army.

It would take far too much real estate to illustrate the extreme lengths the Court took to find that Americans have a Constitutional right to carry guns in DC v Heller. Wiki provides a summary, part of which you will find below:

"(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22–28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32–47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U.S. 542 (1876), nor Presser v. Illinois, 116 U.S. 252 (1886), refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174 (1939), does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."

The irony is of course that none other than Anton Scalia, a diehard textualist Justice, while clearly channeling the dark side, wrote for the majority. Of course, if you think that this apparently decided law will stay decided, just wait a while.

[Dr. Who]

Such justices may be referred to as "conservative," only in the sense that they reject the "Living Constitution" theory--which is, by definition, liberal.



No, it implies that the meaning of some words change over time; and we should be quite careful not to project today's meaning upon words written more than two centuries ago.

In other words, contextualism. Cough, cough...

[Cotton1]

In other words, contextualism. Cough, cough...

Showoff

[Chris]

Section 8: Powers of Congress

Where do the Powers of Congress permit the creation of a Central Bank?

No worries, a little contextual interpretation or if they didn't say we couldn't, then it's not prohibited, resolves the problem:

"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described."

Along with a dash of the Necessary and Proper Clause:

'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'

See Justice Marshall in McCulloch v. Maryland




How are the Air Force and Space Force funded according to this mechanism?

It is clear that the Framers wanted no standing Army, yet the government circumvents this by producing a budget every two years. Neither an Air Force, let alone a Space Force was contemplated, yet again this is where contextualist justice in SCOTUS is useful:

"The Army, Navy, and Air Force are comprehended in the constitutional term "armies." Article I, § 8, provides that Congress may "raise and support Armies," and "provide and maintain a Navy," and make "Rules for the Government and Regulation of the land and naval Forces." "

see Justice William Douglas in Laird v. Tatum

(Shouldn't the Militia be called the "National Guard"?)


Second Amendment


The US Constitution does not plainly provide a right to self-defense nor does it unambiguously provide a right to carry a gun. Fear not, a gargantuan feat of contextualist interpretation will find a way, as long as you don't read that sentence like a normal person and make sure to drag in as much historical context as possible, with a dash of the most herculean grammatical gymnastics that I have ever seen (curiously unnecessary in the entire rest of the Constitution) and ignore the fact that America now has a standing army.

It would take far too much real estate to illustrate the extreme lengths the Court took to find that Americans have a Constitutional right to carry guns in DC v Heller. Wiki provides a summary, part of which you will find below:

"(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22–28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32–47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U.S. 542 (1876), nor Presser v. Illinois, 116 U.S. 252 (1886), refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174 (1939), does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."

The irony is of course that none other than Anton Scalia, a diehard textualist Justice, while clearly channeling the dark side, wrote for the majority. Of course, if you think that this apparently decided law will stay decided, just wait a while.

Great argument for how the government has exceeded its constitutional bounds. National bank, standing army, and let's not forget a right to privacy. These precedents can be undone by returning to their origins and demonstrating them unreasonable.

BTW, the second does explicitly protect the right to carry in the word 'bear.'

[Chris]

In other words, contextualism. Cough, cough...

Contextualism is being mindful of the context in which a law was legislated when interpreting text. What did it mean to those who voted for it?

[Peter1469]

It's difficult to achieve neutrality when justices are being chosen based on their political leanings and that is because of the lack of clarity in the Constitution itself, which could be remedied by amendment, if politics were not so polarized. SCOTUS is being asked to do what the law makers are incapable of doing and then being accused of legislating from the bench.

They need to resist that.

[Chris]

They need to resist that.

Both the politicians and the justices need to resist that.

[Peter1469]

The fact that the Framers didn't choose to enumerate every possible right, does not mean that they didn't exist. That is why the 9th Amendment exists.

No. It is a list of the power of the federal government. The rest of the power lies with the States and the people.