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  •  No. (4.00)
    Shouldn't a Supreme Court justice be in the business of literally interpretting [sic] the Constitution?
    You are kidding, right?

    Please find literal interpretations to justify the "separation of church and state," Roe v. Wade, public ownership of broadcast airwaves, and a woman's right to vote.

    The Constitution is a living, breathing concept, embodied in a document written in the 18th century.  Interpreting it literally is as fundamentalist a notion as literally interpreting the Bible.

    •  No, I am not kidding (3.33)
      You are kidding, right?
      Well, no :(

      Please find literal interpretations to justify the "separation of church and state," Roe v. Wade, public ownership of broadcast airwaves, and a woman's right to vote.
      I wouldn't even know where to begin finding a Constitutional right to abortion in the Constitution.  I happen to believe that it was wrongly judged and handled--permutations and emanations euphemistically being used to describe writing new law.
      A woman's right to vote would literally be found in an amendment to the Constitution.  That seems like the proper way to go.

      The Constitution is a living, breathing concept, embodied in a document written in the 18th century.  Interpreting it literally is as fundamentalist a notion as literally interpreting the Bible.
      I do understand that many agree with you on this.  But I find myself troubled when judges do the 'living, breathing' thing, rather than literally interpret existing law.  It just seems like taking on the role on another branch of gov.
      Besides, if you truly want judges doing the 'living, breathing' thing and believe they should make their decisions based on prevailing attitudes and mores (granted, you did not say that but it must be implied, no?) and Republicans win election after election, can liberals then complain if judges make law that tends to favor Repub visions on things?

      •  Given the text, literal interpretation still (none)
        leaves a lot of room for argument.

        You have the 9th ammendment which in effect says that we may well have rights that the drafters of the document forgot to enumerate.  It says, "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

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

        So the document clearly implies that people very likely have rights not listed. Furthermore, the language only makes sense to have here if the point is that people can in fact invoke those rights to limit government action. The document also says that in addition there are powers which are also not mentioned and the legitimate exercise of these powers is reserved either for the states or the people.

        That much it seems to me counts as a pretty straightforward and literal interpretation of the constitution.  The tricky part comes in figuring out which rights these might be.  It would not be a literal interpretation to deny a person some right because it isn't enumerated.

        My point is that the privacy rights found in one reading of the constitution are more consistent with a literal reading of the document than a reading on which only enumerated rights have legal standing. At the same time, any given reading which picks out certain rights as the ones covered by this clause has to go beyond the words of the text to figure out what rights they might be.  A literal reading requires that.

        So I kind of think that a literal interpretation requires thinking of the constitution as proptecting rights that it takes to exist apart from the constitution and of which any group of people, including the writers, might have only a partial understanding.  How that then gets worked into a story about how judges and courts should make rulings which recognize that understanding is of course difficult and I'm not sure exactly what I think about the issue.

        While I don't actually think that John Hart Ely's positive theory of the correct role for judges is quite right, the argument he gives in Democracy and Distrust against "Clause-bound Interpretivism," is pretty strong.

      •  Great reply, (none)
         thanks.  And I apologize for the suffrage comment - obviously the Amendments are incorporated and officially a part of the document itself.  Good point.

        re: literalism v. living/breathing/changing: There must be some balance.  "Interpreting exisiting law" can surely be a lot different than reading the Consitution and accepting every notion therein word-for-word.  I don't think I suggest that judges should pick and choose from prevailing mores when they do their interpreting.  But surely they are influenced by common sense and changing societal conditions (not to mention scientific advances) even as they apply precedent and choose among conflcting appellate arguments.

        You are right that it tips one way and then the other over the years and decades.  And yes, when Republicans win election after election and appoint judge after judge in court after court, the balance tips their way.

        That's why we're all here -- trying to restore some balance, or even tip some things our way for the next good long while.

      •  Where are we told to literally interpret? (none)
        I do understand that many agree with you on this.  But I find myself troubled when judges do the 'living, breathing' thing, rather than literally interpret existing law.  It just seems like taking on the role on another branch of gov.

        Just pointing out a couple things:

        The Constitution itself is vague on how it is to be interpreted.  There is no guidance on whether the Constitution should be followed literally, or whether it should be an evolving, 'living, breathing' document, or any combination of the two.  Any statement that the Constitution should be interpreted in any particular fashion is itself a subjective interpretation of what the Constitution says.

        In support of the idea that the Constitution cannot always be read literally, there is no Constitutional provision for the Air Force, and nobody asks why we have an Air Force when the Constitution only provides for an Army and Navy.   Also, there is no definition 'due process'. Whenever a new issue of due process appears before the court, the justices are forced to interpret based on what the new issues are and how the Constitution applies.

        My guess is the founders were deliberately vague when they wrote the Constitution.

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