Hypothetical: Imagine you are a judge on the Supreme Court during the year 1792 (just after the Bill of Rights has been passed). A case comes before your court regarding the Constitutionality of slavery.

Knowing what you know about modern (read: colonial) history and being a relatively intelligent judge, you realize that many of the Founding Fathers had moral objections to slavery, but compromised with the delegates from the Southern States to keep slavery legal. The Founding Fathers reasoned that it was much more important to have 13 unified colonies, than to split the colonies up because of divisive issues like slavery.

Would you rule that the Constitution says that slavery is unconstitutional?

If no, then what else could possibly be a fundamental freedom, if not freedom from slavery?

If yes, then do original intentions mean anything? Clearly, 2/3 of the states and Congress were not ratifying the Constitution and its amendments with the implication that some portion of it meant that slavery would be illegal.

For those who are wary of where I am going to take a hypothetical question, I am simply trying to gauge your opinion on how the Constitution should be interpreted by the US Supreme Court.

Should the Constitution be limited to what the ratifiers intended it to say and nothing more?

Or should the amendments have broader meaning than what was intended, even if there is no reason to believe that a broader interpretation would have been ratified by the Congress or States?

In regards to the hypothetical question, the constitution circa 1792 didn't mention slavery, freedom to do what you want or anything like that. You can't just make up rights that don't exist in the constitution. It's not about intent, it's just that slavery isn't there.

Should the Constitution be limited to what the ratifiers intended it to say and nothing more? One could reasonably make the argument that the USA can't have a standing army for longer than 2 years , can't have the FDA, can't have a federal reserve can't have farm subsidies, etc. just from looking at the constitution. At the same time if you look at the elastic clause liberally we can have all those things. Who is right? There's no real answer. It's not like the framers are one monolithic entity who all believed the same things about the constitution. Almost from the start there were Hamiltonians and Jeffersonians, Democrat-Republicans and federalists. Each faction had different interpretations and views of the constitution ,neither had the correct answer.

Should the amendments have broader meaning than what was intended, even if there is no reason to believe that a broader interpretation would have been ratified by the Congress or States? I think amendments are purposefully vague to allow future generations to decide for themselves. For example,


What's excessive? What's cruel and unusual? There's no perfect answer. I don't think we necessarily need to agree with the opinion of a bunch of dead guys in tri-corner hats. And furthermore, what is cruel and unusual is different from what it was in 1790. Today public executions are unusual, in 1790 they weren't. No amount of research could find what James Madison considered cruel and unusual under today's circumstances. The people and their legal system need to interpret exactly what the Constitution means in context.

Should the Constitution be limited to what the ratifiers intended it to say and nothing more?

Original intent of the founding fathers should be the standard by which to interpret the constitution. If not, then what should be? How can a document that is so wide open to interpretation protect our rights? Any judge can take away our rights if we allow for broad interpretation.

However the answer to the question is no. The constitution should adapt to the times not based on the whim of some judge, but by the people through the amendment process.

Should the amendments have broader meaning than what was intended, even if there is no reason to believe that a broader interpretation would have been ratified by the Congress or States?

No they should not. If a right is thought to need constitutional protection. Then the ammendment process should be used.

We agree that slavery was not mentioned in the Constitution, nor implied. I assume we would both agree that slavery is a fundamental freedom for all humans. We also agree that you can't just make up rights that aren't there.

So then let me ask you about two issues that are not mentioned in the Constitution, but have been interpreted to be in the Constitution by the Supreme Court: the right to die and abortions.

Both interpretations hinge on the 5th and 14th amendments. But by the time the 14th amendment was passed, abortion was illegal in several states and kept on the books.

If the intent of the 14th amendment was intended to ban abortions, among other things, then wouldn't the states that ratified the Constituion, also ban anti-abortion laws? But they didn't. I think it's safe to say that 2/3 of the states have not ratified a Constitutional amendment that deals with abortion at all.

The right-to-die cases have not yet fully worked themselves through the Supreme Court, but I think it's safe to assume that if there's 5 judges who believe that abortion is in the Constitution, then there could easily be 5 judges who find a right-to-die in the Constitution.

My point in this post is not to argue the merits of abortion (that topic has been hit ad nauseam and never gets anywhere). I'd rather focus on the principle at hand, especially with my hypothetical on slavery.

Can the Constitution allow for meanings that are clearly beyond the scope of those who wrote it?

I think we agree that the Constitution needs to adapt with time. The Founding Fathers could not have envisioned the Internet, but surely what we are doing right now is a form of speech that should be protected. That's why I think the definition of "speech" should be broadly interpreted across time periods, not strictly defined.

But what about amendments that have changed with time, not because the times have changed, but because people have not always applied it correctly?

For example, the second amendment was originally intended to apply to militias, but has been broadly interpreted to mean the general public over time for various reasons. There is no indication that 2/3 of the states ratified a right to bear arms for the general public, yet would anyone today deny that such a right exists in the Constitution?

First of all the constitution protects free speech PERIOD. It does not limit it to a certain medium. Now there is some argument to be made about what constitutes speech but, that is another discussion.



Wrong again. The second amendment, as the rest of the Bill of Rights, are to protect individual freedoms. The second amendment states.



The right to keep and bear arms is the peoples. The reason for protecting it is the need for protection. The militia during the revolutionary war was made up of whoever happened to show up with a gun.

The ammendment process should be the way in which to change the constitution, not through twisting its intended purpose.

Article I

Section 9 Clause 1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Section 10, Clause 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article II

Section. 2. Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Article IV
Section 2, Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (See Note 11)

Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article VI
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.


As written, It is obvious that slavery is constitutional in the united states, and that it cannot in any way become unconstitutional until at least 1808.

and I am bound by oath to support it.

If the people at large want it changed, they can revolt and overturn it, or they can wait 16 years and vote to change it.

BTW:

http://en.wikipedia.org/wiki/Militia#United_States

the General public IS the militia. Remember the minuteman?

Should the Constitution be limited to what the ratifiers intended it to say and nothing more?

This is a flawed premise due to not being able to know what the ratifiers intended to say. This act alone amounts to an exercise in guesswork interpretation.

Or should the amendments have broader meaning than what was intended, even if there is no reason to believe that a broader interpretation would have been ratified by the Congress or States?

Why just the amendments? Okay, I'll let that slide. Since nobody can tell what the original meanings were supposed to be, what the consensus was on the meanings (and I doubt there was one), then the "broader interpretation" notion is also a subjective idea. Who can judge what is a broader interpretation than the original? Perhaps the original idea was to allow for broad interpretations. Perhaps not.

This goes back to strict interpretations on the Constitution. Well, that depends, doesn't it. Those making judgements about constitutional law seem to pick and choose when and why to be strict or not so strict. It depends on agendas.

Strictly speaking, the Constitution does not allow for gay marriage. Right. It does not allow for hetero marriage either. In fact, it is silent on the subject. Same can be said on women's reproductive rights.

Strictly speaking, the Constitution does not allow for a strong Executive. Okay, how'd we get to have a strong Executive? Can the trend be reversed? Was this accomplished through the Legislative or Judicial branches, or a combination of both?

Strictly speaking, the Constitution does not allow for public schools, let alone prayer in them. You get the drift. Stuff happens in real life that isn't covered in the Constitution or its amendments. Sometimes that's good, sometimes not. The goodness or badness of a situtation is also subjective.

So all we have are subjective interpretations of the Constitution. One person might think they are too broad, another too narrow. Whatever, that's the nature of life and politics.

Should the Constitution be limited to what the ratifiers intended it to say and nothing more? Yes, when they speak to issues that are not technology dependent. One of the basic arguments for a "living constitution" is that "things change." Only our technologies change, not our basic natures. Theft today may be accomplished by "magically" changing electronic bits in them new fangled computing machines, rather than nicking a purse of silver coins, but it remains theft. Slavery remains slavery, self-defense remains self-defense, and freedom of expression remains freedom of expression.

Incidentally, the overriding factor in determining what the "ratifiers intended it to say" is what it says! After that, the only consideration should be the context of the times and technology. Technology has raised a few issues (cloning for one, radio communications for another) that the Founders likely didn't give much thought. Abortion? "Right to die", aka suicide and assisted suicide? Weapons ownership? Slavery? Private property? None of those are new, and its pretty clear from both the times and the laws on the books (none of which were immediately overturned by this new Constitution) what a justice sitting in the first session of the Supreme Court would have found. (Note that the following does not necessarily apply to the District of Columbia, Territories and Federal lands.)

Abortion - State's issue.
Suicide - State's issue.
Weapons ownership - Feds can't prohibit it.
Slavery - State's issue.
Private property - a man's home is his castle.
Freedom of Religion - The Fed cannot establish a national church, states can. (Several states had such churches at the time, although they were on there way out...) Establishing a national church meant something akin to the Church of England, but in no way did the 1st Amendment prohibit school prayer. If so, then the very existence of the states of Ohio, Indiana, Michigan, Illinois, Wisconsin and Minnesota is fatally flawed. (Read the Northwest Ordinance...)

Or should the amendments have broader meaning than what was intended, even if there is no reason to believe that a broader interpretation would have been ratified by the Congress or States?
Why bother with legislatures if judges apply "broader meaning?" As noted, the march of technology has presented some issues that were beyond the ken of those who wrote the Constitution, but those issues are few and easy to identify.

Grace and peace, BD

4Gold:

Do you mind if I answer your original unnumbered question?

The answer is, no. At least if one follows the constitution.

Article 1, Section 9 of the Constitution of the United States of America, in pertinent part:

"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

Migration is one thing, but we only import property and not people. So until 1808, slavery was to be allowed.

But, that being said, the above is rather clear evidence that more than a few responsible for the US Constitution believed that slavery was morally wrong and should be abolished/eliminated and so reserved the right to do so in 20 or so years, and made it entirely plain that the abolition/elimination could be accomplished by Congress via statute, and without the necessity of constitutional amendment [i.e., a mere majority and not a super-majority, and no need for state ratification of the same].

And for further support for that proposition, as I said, we only import property and not persons. But yet the document speaks of Persons being imported. With the message being subtle code that we do recognize them as persons, and it's only because the southern states are more or less entirely based on slavery, and how do we deal with that in one day, that we compromise and allow for the 20 or so years.

As Abraham Lincoln so aptly put the matter in a speech of his at New Haven, and to relate this to the above, note the reference to importation of slave-labor in the first paragraph [ http://www.historyplace.com/lincoln/haven.htm ]:

"Now, gentlemen, the Republicans desire to place this great question of slavery on the very basis on which our fathers placed it, and no other. [Applause.] It is easy to demonstrate that "our Fathers, who framed this government under which we live," looked on Slavery as wrong, and so framed it and everything about it as to square with the idea that it was wrong, so far as the necessities arising from its existence permitted. In forming the Constitution they found the slave trade existing; capital invested in it; fields depending upon it for labor, and the whole system resting upon the importation of slave-labor. They therefore did not prohibit the slave trade at once, but they gave the power to prohibit it after twenty years. Why was this? What other foreign trade did they treat in that way? Would they have done this if they had not thought slavery wrong?

Another thing was done by some of the same men who framed the Constitution, and afterwards adopted as their own act by the first Congress held under that Constitution, of which many of the framers were members; they prohibited the spread of Slavery into Territories. Thus the same men, the framers of the Constitution, cut off the supply and prohibited the spread of Slavery, and both acts show conclusively that they considered that the thing was wrong.

If additional proof is wanting it can be found in the phraseology of the Constitution. When men are framing a supreme law and chart of government, to secure blessings and prosperity to untold generations yet to come, they use language as short and direct and plain as can be found, to express their meaning. In all matters but this of Slavery the framers of the Constitution used the very clearest, shortest, and most direct language. But the Constitution alludes to Slavery three times without mentioning it once! The language used becomes ambiguous, roundabout, and mystical. They speak of the "immigration of persons," and mean the importation of slaves, but do not say so. In establishing a basis of representation they say "all other persons," when they mean to say slaves -- why did they not use the shortest phrase? In providing for the return of fugitives they say "persons held to service or labor." If they had said slaves it would have been plainer, and less liable to misconstruction. Why didn't they do it. We cannot doubt that it was done on purpose. Only one reason is possible, and that is supplied us by one of the framers of the Constitution -- and it is not possible for man to conceive of any other -- they expected and desired that the system would come to an end, and meant that when it did, the Constitution should not show that there ever had been a slave in this good free country of ours! [Great applause.]"

Should the Constitution be limited to what the ratifiers intended it to say and nothing more?

I Think the constitution should be limited to what the words say and nothing more. To delve into intent would be perilous in my opinion on many levels. I find many times when dealing with the first amendment quagmire that many choose to follow words that were spoken for religion being part of government by founders rather then the words in the separation clause as an example. To simply legislate from the constitution on interpreted intent would be basically inviting the constitution to reflect nothing more then current and temporary political landscapes at a constant rate. The words have a dead end to them, or a finite value, going from interpretation on the other hand I do not feel affords the same.

As it stands as a “living document” I feel that mutations to such will occur naturally of course, but to use such as a tool in political battles would soon leave it as representing nothing as political motivations can result with other political opinions meaning nothing to that person, I would hate to have that occur to the constitution. It should be a very difficult thing to change the constitution overall, or require a great need or gravity to reflect a change to it, which of course would imply intent for something different, but again needs to be made less fluid in how its worded for future usage.

Or should the amendments have broader meaning than what was intended, even if there is no reason to believe that a broader interpretation would have been ratified by the Congress or States?

That could be something again open to so much it would leave the constitution standing with no overall value. Political thoughts come and go, and for the most part cater to only certain aspects of Americans. The constitution on the other hand basically has to perform a job as an umbrella to all Americans. Also to answer this question in the way I am taking it would result in the constitution being less absolute in the meantime and utterly relative to any single persons opinion, which would defeat the reasons for its wordage, or intent in my opinion.

So on the issue of slavery, many sought for a change overall, which would have to be made legal as to be able to enforce such. Of course its all just homo sapien intent or perception, but in regards to American on a whole, or various states in the republic, the central aspect of the law is the constitution, so overall the intent was to make solid and again like an umbrella over all of America this lawful order. My reasoning for why it took sometime, basically to allow the business aspects that dealt with human slavery a opportunity to change in time, and maybe try to escape any serious consequence of such, like war.

The way I look at the constituion, I do not see it as a document that should have something like marriage being an instution for only male and females. I am not debateing same sex couples legality here as much as I could not agree with that in itself being worthy of holding a place in the constitution.

I was under the impression that the states could not enact any laws that contradict the constitution. Can any constitutional scholars prove I'm right or wrong? If my impression is right that means the 2nd ammendment would also ban state abridgement of gun ownership and state establishment of religion.

It really depends on how you interpret the Fourteenth Amendment.

Thanks crashfourit! I knew someone would have the answer at their fingertips. I have to admit I don't understand your comment below.The language seems unequivocal to me.The privileges or immunites are those granted by the rest of the document, including the ammendments. Thus if the United States is not allowed to deprive its citizens the right to bear arms, then the state is also prohibited from doing so. If the US cannot establish a national church then neither can the states. That's pretty cut and dry. No state can make a law restricting personal liberty which if enacted by the federal government would violate the constitution.

The only thing for interpretation is if the 2nd and 1st ammendments actually prohibit those things, which gets us back to the question at hand about interpreting the constitution.

Should the Constitution be limited to what the ratifiers intended it to say and nothing more?
Yes it should. For laws to be effective, people have to understand what they mean. This can only happen if the interpretation of the law is stable. The same goes for the constitution. There is a process for ammending the constitution and that should be used to change it's intent. It's not that hard to do when the change is something society really agrees on.

Should the Constitution be limited to what the ratifiers intended it to say and nothing more?

Yes. If you don't the constitution could become like putty in the hands of judges and politicians. I believe this quote from James Madison describes my sentiment best.



EDIT:
If the constitution really needs to be changed (which I admit it is not perfect) it is best to use Article V than precedent upon precedent.

Note that the original question refers to 1792, and as such, the 14th Amendment is irrelavent, given that it was not ratified until the mid 1860s.

Whether or not Congress had the power to outlaw slavery nationwide is questionable, as the pre-Civil War understanding of state's rights placed the subject of slavery squarely with individual states. It is likely that any such attempt would have foundered on the 9th (or is it 10th?) Amendment, but an Amendment could likely have been pushed through in the mid 1830s, except... While the Framers, even most from the South anticipated the elimination of slavery within a couple generations, a chap by the name of Eli Whitney changed the entire picture.

i believe the Framers knew it was not time to touch upon slavery. i believe they fully expected slavery to be overturned in the next few generations. It was too much at one time with the building of a new nation. Any reading of their writings in relation show that the majority felt it to be a wrong.

Being the Socratic style debater that I am, I'll answer that with a question. Why do we write rules down? If not to follow what they say, what would the purpose of written law be? Of course it should be limited to what the ratifiers intended it to say...and then some. I've been reading the book "Restoring the Lost Constitution" by Randy Barnett. In the book he defines Constitutional Construction and extra-Constitutional rights. Extra-Constitutional rights are rights in the spirit of the Constitution that have a connection to the Constitution but are not specifically granted to it, and therefore, it is required to construct them onto the foundation that the Constitution serves as [in some cases]. So, no, slavery is not Constitutional in the 1700's because first of all, it denies Americans there Bill of Rights rights and slavery goes against the unwritten principles [i.e. the extra-constitutional rights] of the Constitution, those being life, libery, property, the pursuit of happiness, etc.

In addition, I've seen this example of slavery used to take "originalism" down a peg. First of all, I believe that "originalism" is too rigid, just as I think the "living Constitution" is too fluid and boundless. Second, if you think slavery would have been legal back in the day, that isn't a jab at originalism, it's simply a jab at the Constitution.

CP

Should the Constitution be limited to what the ratifiers intended it to say and nothing more?

Or should the amendments have broader meaning than what was intended, even if there is no reason to believe that a broader interpretation would have been ratified by the Congress or States?


The main problem with the question is that how could anyone possibly know what the ratifiers or Framers were thinking? Even if one looks to the writings and speeches of each individual, there are numerous inconsistencies and other such propaganda used to support the Constitution. However, the biggest problem with it is that there was not any single Framer and all of them did not have the same opinion on how to create this new document. If certain Framers had a disagreement on a certain provision or perhaps different interpretations of the same section...than how can anyone say that they know exactly what was intended. The fact is that the only thing that we can go by is what was actually written down. This is of course a textualist point of view which disregards intent and looks strictly at what was written and interprets it so. Just to give a wild example, if a state passed a law that forbid people from congregating together for the purposes of committing a hostile action...if the law was intended to prevent maybe KKK members from committing violence...the law could still be used to prosecute something like a protest group since the situation fits the jurisdiction of the law. The example is a little off...but you get the idea.

We have to look at the Constitution first through the lense of a textualist and then through the lense of jurisprudence. Basically, first we see what the law actually says, and then we see how it has been applied in the past. In my opinion, that's the best way to go about it. Of course, this leaves room for judges that will make law rather than interpret law but that is the system we have chosen. It's our job to elect representatives that will appoint responsible judges who will interpret the law and not play a game of politics.