RoR: Forum

Regarding the ruling on the case of the D.C. gun ban, this ...

It was therefore surprising when a leading conservative jurist, Judge J. Harvey Wilkinson III of the U.S. Court of Appeals for the 4th Circuit, denounced the ruling as a shameful piece of judicial activism. Heller, Wilkinson wrote in the Virginia Law Review, “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”

... is evidence of a thinking error on Judge Wilkinson's part. Wilsinson's argument would only be valid for votable issues; but individual rights -- such as the right to own a firearm (a corollary of the right to self-preservation) -- are not properly subject to a public vote.

Ed

(Edited by Ed Thompson on 6/10, 8:29am)

Post 1

Saturday, June 12, 2010 - 2:39pm

Ed,

We agree that gun ownership is covered by individual rights and that it should not be subject to a vote. But Wilkinson is arguing about the proper methodology for determining what is or what is not constitutional.

It gets very complex. I agree with the basic outcome of Heller - the elimimation of the DC gun control laws, but I don't think it was the proper way to do it. The Supreme Court opinion should not have been based upon the second amendment which is a weak support for gun ownership. The second amendment does say, "...the right of the people to keep and bear arms" but it does so for the explicit purpose of defense of the individual states using their militias. The reference to the militias clouds the issue and forces the justices to engage in interpretation that goes beyond what is in the text. Wilkinson is horrified that those who were the strongest opponents of liberal interpretation are now handcuffed with their own precedent into accepting liberal interpretation under some unstated circumstances.

The court's support of gun ownership should have been based upon the nineth and tenth amendments. When the bill of rights were passed in 1791 nearly everyone owned a gun (in fact, years earlier there were laws in some of the colonies requiring the citizens to own guns). It would never have occured to the people of that time that people in later times wouldn't own guns and it wasn't a right that had been in contention in recent history - they wouldn't have thought to specify that right any more than they would have imagined a need to specify the right to a own a horse. But in the nineth (enumerated rights do not disparage or deny rights otherwise enjoyed) and tenth (powers not delegated to the United States remain with the states and the people) the founders provided the protection against changes in circumstances in the future.

There are four ways to get to that end result of Heller:

Liberal Interpretation: Stretching the meaning of second amendment beyond what it says.
Originalism: Using the nineth and tenth amendments to justify overturning the DC gun law.
Majoritarian implementation of Individual rights nationally: Changing the United States Constitution to expand the second amendment so that it included the right of the people to keep and bear arms for their personal use, apart from any militia.
Majoritarian implementation of Individual rights and Federalism: Change the Constitution of the District of Columbia to specifically acknowledge the right of individuals to keep and bear arms in DC.

Post 2

Saturday, June 12, 2010 - 10:15pm

Steve,

Let me see if I get what you're saying. I'll speak in my own words. Let me know if I'm capturing your point:

In determining what's constitutional, we can either leave it up to the judge's interpretation (and have court precedent become the new law of the land) -- or we can leave it up to a public vote (and have mob interpretation become the new law of the land).

My beef with this is that we don't need a new law of the land (we don't need individual interpretation -- because we have objective clarity).

It seems that Wilkinson is acting on the Primacy of Consciousness fallacy where what's true or real is nothing other than what people think is true or real -- whether it's a judge telling us what the constitution means; or whether it is a public vote deciding what the constitution means.

Well I don't buy any of that. It's nonsense.

Ed

Post 3

Saturday, June 12, 2010 - 11:00pm

Ed,

First, we started with the vote - the vote to adopt the constitution, then there was the vote to accept the amendments, and there could be a vote to make new amendments. That is the just the mechanism we use to create or modify the constitution (after all, it didn't grow on a tree, and I assume we don't presume it has always been perfect.)
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If I take you literally, where you say we don't need a judge's interpretation or a vote for a new amendment or new law then I'm bewildered as to how you propose to make or enforce law or to resolve conflicts.

Are you saying we don't need a Supreme Court? If we do need to have a court to resolve conflicts between people where the jurisdiction is constitutional, how else is it done than without the Justices applying the law? How does the "objective clarity" that you claim "we" possess serve as a mechanism for getting the job done?
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You and I are independent minds who will make our own decisions as to what is or isn't constitutional and what is or is not right. Something can be constitutional, but still be wrong (if the a clause in the constitution is wrong in some area). But neither you nor I are part of the official methodology whereby a law is declared constitutional. That does NOT make the declaration of the court an example of primacy of consciousness.
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The public never votes on "what the constitution means" - I can't imagine what you meant by that. The public can only vote to amend the constitution and that is very different.

The constitution is a law. It has to be crafted to best serve its intended purpose - just as any other law. The wording is important. There are areas where the constitution could use some improvement.
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It is all well and good to claim that we have the right to own a gun. But that is just the beginning - the assertion of a moral right. Rand did all of the heavy lifting in logically deriving the nature of individual rights and in establishing the proper purpose of a government. But there is a lot more work that had to be done and Jefferson and Madison did most of it. They understood the machinery that was needed. The constitution is a a piece of the machine, as is the court and the processes that exist to run the court are a part of how freedom is maintained. Those justices need to interpret how the constitution applies to the case before it. If they run off on an ideological bender, no matter which ideology, then the mechanism isn't working.
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I listed the four ways that came to mind that the court might arrive at the Heller decision. If you think they are all nonsense, then please explain your process.

Post 4

Sunday, June 13, 2010 - 10:01am

Steve,

First of all, there are 2 x 2 things going on here:

a) what's right to do
vs.
b) what has been done

... and ...

a) the ends
vs.
b) the means

I'm also operating off of the rationally-sound theory that the founders and the framers worked within a philosophy of "natural law" (natural, individual rights, etc). We have 'Objectivism' now, but they called it 'Natural Law' back then. Keep that in mind as I answer.

If I take you literally, where you say we don't need a judge's interpretation or a vote for a new amendment or new law then I'm bewildered as to how you propose to make or enforce law or to resolve conflicts.

Think of a Court of Universal Logic. Okay, maybe that's too strong. Anyway, I propose to make law based on demystified, natural law. There is like this Grand Court of Reason. Okay, maybe that's too strong. Anyway, what I'm trying to say has been historically said by philosophers -- that there is a bank of 'natural' reason from which we can draw (and that we are not tied or bound by any individual's re-interpretation; whether it be a judge or a majority).

Think of something so simple as the equation: 2 + 2. Its answer or solution transcends individual interpretation. If a judge were to rule that 2 + 2 = 5, then that court precedent would be meaningless (when checked against the objective and verifiable facts of math). It is essentially a science -- rather than a give and take which depends on each individual's individual interpretation. It is objective. Just as it would be proper to discount the court precedent that this judge has set -- so, too, would it be proper to discount court precedent which has been unconstitutional.

So how do we discover what's constitutional?

The founders and the framers didn't just write down a bunch of rules, they left us a 'moral algorithm', also. That algorithm is 'natural law.' A loose interpretation of this might be called a Law of Individual Rights. In the 9th Amendment, there is explicit reference to the basis of natural law/natural rights -- the "looking glass" by which to properly and objectively interpret the US Constitution.

So how would that apply to the issue of gun control?

If we gloss over "what has been done" and look at "what's right to do" -- then any states with gun control laws would be declared unconstitutional and given whatever choices should be given to such defiant states within in a country.

The ends -- as they always are -- are the enforcement of individual rights. They prescribe one answer: the right to bear arms. There are, as you say, multiple means of getting to that end. However, with natural law, the right ends prescribe the right means. The right means in this case are to look at the 2nd Amendment as an explicit statement of part of the 9th Amendment. The framers didn't create the 2nd Amendment as if it were an addition to the rights contained in the 9th Amendment.

How do I know this?

By using the 'moral algorithm'.

If you look at the nature of man, and you use reason, then you can start to list off the individual rights of man (and logically apply them to contexts). These are the rights referred to by the 9th Amendment. As it happens, the application of reason to the facts of the matter leads to a human right to bear arms. That makes the 2nd Amendment not an addition to the 9th Amendment, but more like an effort to shine a flashlight on part of the 'natural' rights of the 9th Amendment (to make sure everyone is clear that it is, indeed, one of those several rights contained in the 9th Amendment).

Why shine the flashlight?

Because gun control is a necessary gateway to tyranny. Here are your 4 methods again:

Liberal Interpretation: Stretching the meaning of second amendment beyond what it says.

Originalism: Using the nineth and tenth amendments to justify overturning the DC gun law.

Majoritarian implementation of Individual rights nationally: Changing the United States Constitution to expand the second amendment so that it included the right of the people to keep and bear arms for their personal use, apart from any militia.

Majoritarian implementation of Individual rights and Federalism: Change the Constitution of the District of Columbia to specifically acknowledge the right of individuals to keep and bear arms in DC.

The first one misses the mark because it fails to integrate the words contained in the 2nd Amendment with the objective algorithm of natural law (which automatically links it with the 9th Amendment). The second one is fine but, under my outlined line of reasoning, redundant.

The third one is wholly unnecessary -- because it is already entailed with a proper, natural law interpretation. We don't need to change the Constitution wording on this one, but only improve our understanding of the words already written (and how you must integrate them with this 'natural law' understanding of the matter).

The fourth one is fine, but with an explanation. It would have been wrong if it had first presumed state power to violate the individual right to bear arms in the first place. When the 10th Amendment talks about powers not granted to federal government nor denied to the states, that power -- in this case -- would be the power of gun control. As I said, owning guns is a right, and even states can't violate rights -- so gun control is a power "prohibited" [by the Constitution] to the states.

Ed

(Edited by Ed Thompson on 6/13, 10:09am)

Post 5

Sunday, June 13, 2010 - 11:28am

Ed,

We agree on all of the underlying principles, but not entirely on how to structure and use the constitution.

On a) what's right to do, versus b) what's been done:

a) "What's right" in this context is defined by Natural Law and Philosophy of Law. These lie outside of the constitution. They were the foundation, the underlying understanding, and the moral ends that were used to construct the constitution. The purpose of the constitution is to convert those into laws. Madison had made an extensive study of every republic before he wrote the constitution. He and Jefferson exchanged thousands of letters. As you say, they worked from a base of Natural Law. The purpose of the constitution was NOT to describe the natural law, but to describe the structure and methods and powers and limitations of a goverment whose purpose was to serve man in establishing the effects of natural law - in general. In specific, Madison wrote a contract that the states would sign. Without their signatures, there would be no federal government.
b) Precedent is part of the bag of tools the judges and lawyers and scholars use to refine our understanding of all the implications and applications of a law. When judges are not abusing their function, not attempting to make law from the bench, not attempting to push an agenda, then it is very helpful - it is a key component in a slow but steady refining of the laws to get them to serve their two purposes (to apply to the messy world of human conflicts and represent their underlying individual right and moral purpose with the greatest clarity and completeness).

Summary: The constitution is NOT a statement of natural law. It is the point where we leave natural law to begin man-made law. And precedent, used properly, is a growing body of wisdom of the specific laws.
----------------

You wrote, "...we are not tied or bound by any individual's re-interpretation; whether it be a judge or a majority."

Much of what you said sounds almost mystical (Court of Universal Logic, etc.). As a practical, required part of implementing a system that will protect rights we make rules, laws, we hire or elect people, they gather in buildings and follow spelled-out procedures and generate imperfect outcomes. That is reality. There will be no mystical magic property of 'rightness' that makes 2 + 2 = 4 glow brightly or rise to the top - not in such a fashion as to get rid of the fact that humans will be the ones making, changing, implementing and interpreting the laws. Things will average out in a way that represents our current culture (to a degree). We work to implement improvements, to correct our mistakes, and set a better course. When our efforts are successful, the culture moves closer to human flourishing because our man-made laws conform more closely to our discovered natual laws.

The machine functions like that - individuals, their ideas and values, the averaged effect of all those individuals as expressed in the culture, the culture influences individuals, individuals steering the bits of machinery, and the effects of all of this get folded back in as causes for the next set of effects.

That is the big picture. In it we see you and me. Two individuals with ideas and values. We feed on the culture and our expressions become part of it. Neither of us happen to be part of the Supreme Court machinery, so our interpretations of constitutionality won't have the same effect as a Justice's.
--------------------

Our knowledge is hierachical

1. Metaphysics - Human nature
2. Epistemology - Reason and logic
3. Ethics - Moral orientation and Individual rights
4. Politics - Minarchy and political principles
5. Philosophy of law - objective law, principles of law
6. Constitutional law - Description of chosen minarchy structure and description of individual rights (both described in legal terms, not philosophical or moral)

There is a flow from ideas to structures - same hierarchy

1. Metaphysics - Man's life is not guaranteed
2. Epistemology - We must use reason not faith nor emotion as the basis for our values and rules
3. Ethics - We have the right to live, and thus the right to defend our life
4. Politics - We establish a government and delegate our right to self-defense, but no more since we have no more.
5. Philosophy of law - Laws must be specific, objective, and based upon individual rights
6. Constitutional law - The government shall consist of three branches.... Congress shall make no laws....
-----------------------

Neither Jefferson nor Madison wanted the Justices to do any interpretations of the constitution that went beyond understanding the words as they were originally intended. That is the point of a constitution - there are no people who are given elite philosopher-king status and perform philosophical examinations at the level of metaphysics, epistemology, ethics or even politics. Instead, they use established principles of law and interpret the application of the constitution to a specific case and use the meanings that the words and sentences originally had.

They had very good reason for intending the justices to strictly limit themselves. They knew that justices might be appointed that had ideologies that would not always be perfectly aligned with individual rights - they did not want those justices to have an easy time changing the nature of our government through judicial activism. And you can NOT create some rule (that would be effective) that says a justice may consider natural law if they do it just like Madison or Jefferson, but not like Plato or Ruth Ginzberg.

And it goes further than that. Even if there is a totally bad clause in the constitution, they did NOT want the justices to be the ones to make a change. That gives too much power to the Judicial branch. They left it to the people to change the constitution and the judiciary to force laws to conform to what was chosen.

There is no perfect sytem, but this one comes as close as any I can imagine.

Post 6

Monday, June 14, 2010 - 7:22am

Thanks for the thoughtful response, Steve. I'll need some time to reply.

Ed

Post 7

Friday, June 18, 2010 - 3:39pm

Steve,

You're going to kill me for doing this, but I'm going to temporarily ignore your post # 5. I do this in order to more properly address your first post. Addressing your first post first (and more properly) is what I think is needed, in order to avoid talking past each other ...

Wilkinson is arguing about the proper methodology for determining what is or what is not constitutional.

Agreed. But this -- how it is that you unquestionably discover if something's constitutional, or not -- is still at issue regarding my point about what's a votable issue (and what's not) and how the US Constitution -- in this case -- got it right. In order to understand how that can be true, let me invent a new term (for judges like Wilkinson):

"Non-integrative literalist" (or nil, for short). I will come back to this point later.

The reference to the militias clouds the issue and forces the justices to engage in interpretation that goes beyond what is in the text. Wilkinson is horrified that those who were the strongest opponents of liberal interpretation are now handcuffed with their own precedent into accepting liberal interpretation under some unstated circumstances.

Okay. Stop for a moment. I accept your evaluation of Wilkinson's reference frame. I believe it to be an accurate portrayal. But this -- what Wilkinson was thinking -- is still at issue. In "defending" Wilkinson, you have adopted his premises regarding "non-integrative literalism" (nil). Let me explain. For a nil, in order to find something in the Constitution, you have to find it written in the Constitution. It's what "literalism" means (please pardon that pun). But here is the rub:

Due to the integrated nature of reality, all interpretations must go "beyond what is in the text."

I was reading about Ayn Rand and it was a story about a guy questioning her in real life. She had a full conversation with him. She gave an example about why honesty is the best business decision/policy. Let's assume, for example, that she used the profession/business of coal mining in her example to the man. At the end of their conversation, Rand was sure that she had him convinced. But then he asked a fateful question:

But what about when you're in the oil-drilling business?

Rand knew then that this man's mind would not go "beyond what was in the [conversation]". He couldn't see broad truths or an integrated reality. For him, every new thing was an unintegrated concrete. That thinking (concrete-bound, anti-conceptual) is what I accuse Judge Wilkinson of. You have got to admit that it does explain his behavior. A concrete-bound judge would be terrified of any kind of "interpretation." He might call it blasphemous. His thinking wouldn't go beyond the text. If it isn't written literally and in black-and-white in the text -- then it isn't constitutional.

That's one way to go about thinking about what's constitutional (and what isn't). The other way -- the way I recommend -- is to go "beyond what is in the text" and view the text in the "natural law" framework in which it was founded. So, now we have 2 ways to go about discovering what's constitutional:

1) look for words in the text -- and anything not in there isn't constitutional (non-integrative literalism)
2) integrate the words in the text with the philosophy behind them (thinking in fundamentals/essentials)

To recap, if Wilkinson viewed the Constitution the first way, then he'd have a problem (because -- on that view -- all "interpretations" become a problem) and he would speak out about it (and he did). If Wilkinson viewed the Constitution the second way, then he'd understand that gun rights are in the Constitution/Bill of Rights at least twice (i.e., the 2nd and 9th Amendments) and -- because of this integrative, natural law view of the matter -- he wouldn't complain about folks using the courts (instead of a ballot box) to get their gun rights respected again.

Another way to say this is that he wouldn't make the mistake of equivocation between "votable issues" and "rights" (he wouldn't refer to gun rights as merely a "political agenda").

Ed

(Edited by Ed Thompson on 6/18, 4:49pm)

Post 8

Friday, June 18, 2010 - 4:32pm

Steve,

In defense of the judge, you are disagreeing with me that there is an objectively-superior answer on this subject. I agree that your portrayal of what the founders were trying to do is accurate. But then you fall back into this position where you fear that even "natural law" becomes non-objective. You do this with your point about who gets to 'decide' which 'kind' of 'consideration' of "natural law" we use (that 'kind' which approximates the 'consideration' of "Madison or Jefferson" or that 'kind' which approximates "Plato or Ruth Ginzberg").

In my opinion, you are just digging yourself into a position of nominalism -- where objectivity is impossible (where even objective things like 'natural law' become subjective).

Let me give you an analogy which better supports my point. I took typing in high school. One day my teacher told us that if we are off by one letter -- but always by one letter -- that we could still get a good grade! I didn't understand what he meant. I thought he was crazy.

How could I get awarded a good grade WHEN EVERY LETTER I TYPED WAS WRONG???

He explained to us that, if you start with a wrong hand position, then every letter is wrong -- even though you know how to type. Our teacher could check this -- he could tell if we knew how to type or not -- by going "beyond what was in the text." He could do this because he understood an evaluative algorithm (the QWERTY key positions). For instance, if you planned to type the sentence:

"Always interpret words with regard to the fundamentals of their origination."

... and you had accidentally started with your hands up too far on the keyboard, then your sentence would look like this:

Qo2q6w 85340435 294ew 285 43tq4e 5o 53 runqm3n5qlw 9r 6y384 948t8bq5689l (or something like that!).

My point is that, like with my typing teacher, it isn't difficult or impossible to gain an objectively correct interpretation of the US Constitution. It's not as simple as just looking at the words but, once you understand the algorithm or framework (e.g., like knowing the interrelation of keys on a QWERTY keyboard) -- you will have the capacity to know how to arrive at the unquestionable and objectively correct interpretation of the US Constitution (an individual capacity which might put some judges 'out-of-business' as our "chosen interpreters" of what is constitutional or not). **

Ed

**Unless, of course, you start with a wrong philosophy -- but everything is hard when you do that. Even then, the Constitution wouldn't be some extra-special, hard thing to understand or apply (something which stands out as being especially difficult).

(Edited by Ed Thompson on 6/18, 4:54pm)

Post 9

Friday, June 18, 2010 - 5:54pm

Ed,

This is in response to your post #7, but it might be better to read my response to your post #8 first (I'll have it up shortly).
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The first issue is one that is easy to clear up. It has to do with two ways to use the term "interpret" or "interpretation" - as those words are used with constitutional law, EVERYTHING is an "interpretation" even if it's the most literal of all possible explanations - just the words in the text and nothing else. If you says that the constitution governs freedom of speech, that is an "interpretation." The other kind of interpretation is one where a person attempt to imply a connection from the constitution to some external philosophy (which could be Christianity, or it could be Natural Law, or it could be secular altruism, etc.) But both are properly referred to as "interpretations" as that word is used in this field.
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My point has been that the founders set up the constitution and intended it to be used in a very literal fashion. They did not want future justices to reach outside of the constitution unless there was no possible way to resolve the conflict while staying inside of it. This was a method. For them the constitution was a literal contract to followed precisely and not to be treated as if it would "interpreted" in ways that allowed someone to bring in outside moral or political philosophies. They saw this method as key to limiting government growth. They recognized that if a change or explanation or clarification was needed, that it should be done by amendment. Think of a contract a renter makes with a landlord. Neither party would want the other "interpeting" this document loosely - if the terms aren't clear, they should be changed and conflicts should be based upon this literal interpretation of the words. This was part and parcel of separation of powers. The legislative branch did the conversion of philosophy into law, but it would be examined by the judiciary who couldn't do that. And neither were able to enforce there product - that had to come from the Executive.
-----------------

If you say that natural law can be pulled in, because that it is what the founders drew upon to create the constitution, you will also pull in Christianity, altruism, and who knows what kind of absurd versions or extentions of natural law. The only safe approach, the only approach that is consistent with strong limitations on government is to take the literal approach.

It is not concrete bound, as in the case of the person talking to Ayn Rand. Rather it is setting a specific purpose and methodology for that document.
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Determining what is constitutional is a legal procedure. Let me pull something out of lecture given by Henry Mark Holzer, Ayn Rand's attorney, a constitutional lawyer, and Professor Emeritus of Constitutional Law.

(I'm taking this from my notes - my fleshing out of his words)

The Nine Elements of Constitutionality are:

1. Involving a body of legal principles
2. Those legal principles are derived from an interpretation
3. That interpretation is done by a high court
4. The interpretation is of a written constitutional document
5. It is done in the disposing of cases
6. In the case, the validity of some act or inaction of governmental power is questioned
7. The governmental power is national, state or local
8. The power has been challenged
9. The challenge is framed in terms of the constitutional document

In other words, it is measuring of the validity of some government action (or inaction) against some constitutional document that is done according to legal principles done by a court in response to a case that challenges a government action or inaction.

What is the object of the interpetation/measuring? Example: An act referred to in the case might be 'interpreted' – “Is burning a draft card an example of speech?” Or, it might be words in the constitution that are being interpreted.

What is the methodology of this measuring - this interpretation? Taking a poll? Consulting experts? Looking at the framer’s intents? Asking academics? Or, look at what the words meant to the framers when they wrote them. If they look at the words that are written in the constitution in terms of what those words meant to those that wrote them - it is called "Originalism." When the justices do anything else, they are attempting to twist the proper meaning into something else... Attempting to legislate from the bench.
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Here is the deal. If were to take the constitution as finished forever, and somehow magically right for all time, that is too much like the bible or quoran or some other religious document, it would be the wrong approach and we'd end up in trouble. I agree that the constitution can only be truely moral to the degree that it is founded upon Individual rights (a rational, objective understanding of Natural Law), but it is our job - we the soveriegn people - to attend to that. We create the contract that we call the constitution, and then it structures and limits government. The final word is with us - right and wrong. The founding fathers were in conflict about states rights and slavery. The conflict - both the right and the wrong - were written into the contract. Some wrong parts were amended after the civil war. Some method is needed for the soveriegn power to be applied - we don't all think the same, there are no such things as oracles, so we vote. The vote takes precedence over the constitution (in the sense of adopting or amending it) not because wisdom is collective, not because a majority makes right, but because we need some method. If the majority vote in a bad amendment it will be constitutional when applied to a case even when it is immoral. And when a clause is immoral the proper way to deal with it is to amend it, not hope that it will be "interpreted" into being correct by a justice whose heart lies with natural law.

Post 10

Friday, June 18, 2010 - 6:39pm

Ed,

You said, "In defense of the judge, you are disagreeing with me that there is an objectively-superior answer on this subject."

I wasn't attempting to defend the judge, but rather to take a particlar position regarding the constitution. I don't disagree regarding the existence of objectively-superior answers. I am saying that such things can and do exist. And people will disagree because some people have less objectively-superior answers - be they Supreme Court Justices or two private citizens whose conflict took their case to court. There is the superior moral description and we strive to put it into the clearest, most functional language suitable for constitutional law. Then we should demand that the judges stick to what it says and not to go outside of it. If it turns out that we need to go outside of it to get the objectively-superior result, then we amend the constitution's language to correct that - we don't tell the judges to become philosopher kings and make new law in their opinions.

You are mixing up what I'm arguing for - which is a methodology for applying a contract. You are mixing up the methodology for applying a contract with the method for understanding what is (epistemology) or what should be (ethics). I'm not making a philosophical error - I'm arguing for a method, a policy, for using the constitution. Those are separate. We don't want the judges to be philosophers. We want them to apply the contract to the facts of the case and we, the people, will correct the contract when it is wrong (out of whack with natural law). That was the founder's intentions, and it makes the most sense.

When it comes to the arguments for what to write when creating a constitution, or what to write when creating an amendment, then you go directly to natural law. But after it becomes the law of the land - no more reaching to the outside by judges.
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This has its own risks. If you go through a period of history where the voting majority hold bad political principles, then bad amendments can be made. But there is no way in reality to make a perfect government with decidely imperfect people. And the people, via their culture, will in time, move the government in better or worse directions - that's inescapable. All of the checks and balances are just to slow it down, and make happen more consciously and more explicity. They are safety features but they don't make things run automatically. Even if someone started with a perfect constitution, over time it will either be ignored or badly modified if the people are badly educated. (Fortunately, perfection isn't required of the constitution or the people - just getting things mostly right and modicum of good will is all that's needed after that.)
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You worried I might be heading in a direction "...where even objective things like 'natural law' become subjective"

Don't worry. I'm quite clear that natural law is natural law. Because some people hold inaccurate ideas of what natural law is, doesn't make it so. The contractions can only exist in their minds, not reality.

Take a look at your typing test example. What did your teacher want to measure? If he wanted to measure consistency and speed and accuracy then he would need an algorithm to measure and weight those three factors. You would lose points for starting with your finger positions off by a row, but possibly earn points for speed and consistently hitting keys one row off. On the other hand, if he was measuring your ability to communicate to the world at large via typing, then you'd flunk. What's the purpose of the test? What's the purpose of the constitution?

If you have an algorithm that is to be used in the interpretation of the constitution it should be part of the constitution, or if it is outside of the constitution then it has to be written somewhere and referred to by the constitution. Otherwise it is chaos down the road - because each rendered opinion becomes not just part of constitutional law, but works to justify its own move away from a literal interpretation. In law, precendent carries weight. How many times have you read in a contract that the the terms herein supersede any prior agreements written or spoken? There is a good reason for that.

Post 11

Friday, June 18, 2010 - 7:26pm

How is it, then, that a literalist would claim there are no other rights than what are enumerated in the Constitution, when the Nineth Amendment says otherwise?

Post 12

Friday, June 18, 2010 - 7:57pm

Robert,

Maybe we understand the word "literalist" differently. I can't find any use of "literalist" that matches your question. Can you point me at an article or discussion where it is used in that fashion regarding the constitution?

The constitution says, literally, in the ninth amendment that nothing in the constitution denies or disparages other rights held by the people. I find nothing in the constitution that says, literally or otherwise, that the constitution limits the rights of people to those mentioned. Did I miss something?

Take a look at these Wikipedia articles: Originalism and Textualism and see what you think.
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I would say that those justices who have written opinions saying or implying that the enumerated rights are the only rights can only do that by interpreting via something outside of the constitution.

(Edited by Steve Wolfer on 6/18, 8:02pm)

Post 13

Monday, June 21, 2010 - 3:29pm

Very good points, Steve.

But then Wilkinson's dicthotomy -- i.e., courts vs. voting booths -- offers us so little from which to choose. Doesn't it mean that Wilkinson is saying he would prefer that we have a vote about taking away some of the (gun) rights of folks -- instead of using the courts to do what, in the end, may amount to the same thing/product? And the reason that this method of rights violation is preferable to the other is because it makes for a longer, slower decline in humanity, justice, and civilization?

Ed

Post 14

Monday, June 21, 2010 - 7:05pm