Positive vs. Negative Liberty

[ThePythonicCow]

Re: Positive vs. Negative Liberty

If the constitution needs no interpretation, what is the purpose of the Supreme Court?

The Supreme Court did not even presume that it could declare laws unconstitutional until Marbury vs Madison, in 1803.

The primary purpose of courts is to apply laws to cases. They must determine which cases over which they have jurisdiction, which laws apply, and if the laws conflict which have supremacy. They can then issue various decisions, writs and orders affecting the conclusions of their deliberations.

Such acts are not "interpreting" the laws or constitution, but "applying" them.

In the Marbury vs Madison case of 1803, John Marshall determined that the duties of the Supreme Court provided by the Constition necessarily required that the Court identify and resolve conflicts between law (Congress or State) and the Constitution, holding the Constitution supreme and perhaps ruling the law unconstitutional.

Even that much is not "interpreting" the Constitution, rather acruing to the Court a power that was not explicit in the Constitution, but which Marshall determined was essential to performing the duties of the Supreme Court which were stated in the Constitution.

There it remained for a long time, with the duties of the Court to determine which law applied (holding the Constitution as the superior law), whether it held jurisdiction, and what were the facts of the case, and to then apply the law to the facts to reach conclusions and issue appropriate decisions, writs and orders.

In the last century, especially during FDR's terms, the Supreme Court has assumed a new power for itself, to "interpret" the Constitution, meaning to determine what the Constitution would say if rewritten in the light of modern circumstances and society, sometimes in plain contradiction to what is written and sometimes plainly adding principles not present. This is the living constitution. It is an abomination in my view.

[ThePythonicCow]

Re: Positive vs. Negative Liberty

It takes more than a document alone; there must also be the determination to follow it. It's become fashionable to view the Constitution as a "living" document that must be "interpreted" in light of evolving standards. But those who advocate such a view never address a key flaw in it: that the Constitution itself provides the means by which it may be amended. So if we think some modern development merits a change in the meaning of the Constitution, the Congress or the States should call a Constutional Convention. Doing an end run around this process by merely having judges change it to our (or their) liking is itself unconstitutional.

The more common means to amend the Constitution is of course to have two-thirds of both houses of Congress propose the amendment and three-fourths of the state legislatures ratify it.

A constitutional convention would be rather scary, as it risks being overrun by the insanities of mob rule.

I otherwise agree strongly with your post Finster. Changes to the Constitution should be done by the mechanisms provided in that Consitution (or by armed revolt overthrowing the entire government ;)), not by an oligarchy of judges ruling from the penumbras of their personal preferences.

[we_are_toast]

Re: Positive vs. Negative Liberty

The primary purpose of courts is to apply laws to cases. They must determine which cases over which they have jurisdiction, which laws apply, and if the laws conflict which have supremacy. They can then issue various decisions, writs and orders affecting the conclusions of their deliberations.

Such acts are not "interpreting" the laws or constitution, but "applying" them.

I'm not sure what you mean by "applying laws to cases". How can a court "apply" a law, if it doesn't interpret the law?

Here's what it says at the Supreme court website.

... As the final arbiter of the
law, the Court is charged with ensuring the American
people the promise of equal justice under law and,
thereby, also functions as guardian and interpreter of
the Constitution.

...Few other courts in the world have the same
authority of constitutional interpretation and none have
exercised it for as long or with as much influence...

When congress passes a law, and the meaning of the law is in dispute, who should be responsible for interpreting whether the law violates the constitution?

Strict constructionism is not only unworkable, it's doubtful it even exists. Even Scalia says he tries to look at the ordinary meaning of the words (interpretation) to determine the meaning of the constitution. A constitutional amendment for every dispute of the meaning of a clause in the constitution would be the California approach to constitutional law.

[ThePythonicCow]

Re: Positive vs. Negative Liberty

I'm not sure what you mean by "applying laws to cases". How can a court "apply" a law, if it doesn't interpret the law?

I like to use sports analogies here.

Referrees in sports contests do their best to apply the rules as given. If that makes the game seem "unfair" in someway, tough. It is up to some sports body to change the rules if they don't like the affect of the current rules.

I use the word "interpret" in this context to refer not just to "understand the meaning of as written and as applicable", but rather to refer to "adapt to current circumstances."

When Wilt Chamberlain first joined the National Basketball Association (NBA), the three second zone was closer to the basket. Players have to spend most of their time outside this zone, and can only be inside the zone for three seconds before stepping out again. Wilt could stand just outside the zone, take a pass and dunk in a single move. Imagine that the referrees in Wilt's early games found this unfair and asked Wilt to stand further from the basket. That would have been an unfair intepretation of the rules, adapting them to the changed circumstance of the first really big tall strong player. No, it was up to the rules committee, off-season, to move the three second zone line further from the basket.

The conservative Supreme Court justices do their best to apply the Constitution as written to the laws and cases brought before them. If that results in decisions that the citizens find improper in some regard, then the citizens should change the law or constitution.

The liberal justices seem more likely to judge what they personally think is proper or what they think that current social or international norms recommend (this much they explicitly recognize, I believe) and then to look for legal sounding justifications for their ruling.

When congress passes a law, and the meaning of the law is in dispute, who should be responsible for interpreting whether the law violates the constitution?

The Supreme Court, according to its own Marbury vs Madison case, is responsible as I noted above for deciding which laws should apply to the cases it adjudicates, with the U.S. Constitution taking the supreme position.

Strict constructionism is not only unworkable, it's doubtful it even exists. Even Scalia says he tries to look at the ordinary meaning of the words (interpretation) to determine the meaning of the constitution.

Strict constructionism does include looking at the meanings of the words, as written. It guided the rulings of Rehnquist. Scalia finds that a little too narrow, denigrating "strict constructionism" as a form of textualism. Thomas prefers the term "originalist."

I am using "interpret" not in the sense of just reading and understanding what's written, but in the sense of "adapt", as in "interpret the intent in light of subsequent changes in social or legal norms, not interpret the written words."

[Supercilious]

Re: Positive vs. Negative Liberty

Probably many people have already seen it, but talking about positive and negative liberty, I believe the 3rd part of "The Trap" ('We Will Force You To Be Free') is a must watch. It has quite a nice focus on Isaiah
The Trap- Part 3
http://video.google.com/videoplay?do...48588228662817

(Also Ian Carter's essay is quite interesting ...)