buckeye
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 Posted: Thu May 29, 2008 8:46 pm Post subject: Josh or anyone else care to comment |
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This was a discussion between two people in another forum awhile back
I would be interested in any comments anyone would care to make about the
discussion, various points etc.
I will add that Person #2 is a practicing defense attorney whose hobby is
American history, the founding period, church state separation, etc.
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PERSON #1
How to interpret the Constitution?
With regard to the subject of separation of church and state, I have
recently arrived at the opinion that perhaps too much is made of Thomas
Jefferson's religious opinions and views on the issue of church-state
separation.
Too little attention, in my view, is devoted to understanding the words of
the U. S. Constitution in light of the common law methods, rules and
principles of legal interpretation that were well established at the time
the Constitution was established.
My research reveals that the first time the U. S. Supreme Court was
confronted with a legal dispute requiring it to interpret a provision of
the Constitution was in 1793. The case was Chisholm v. Georgia. The section
of the Constitution involved in the dispute was Article III (The Judiciary)
Section 2 (Trial by Jury, Original Jurisdiction, Jury Trials).
The State of Georgia, the defendant in the case, contended that the
judicial power of the United States did not extend to controversies between
a State and a foreign Citizen. The Court ruled that Georgia was wrong.
In their written opinions, three of the five justices explicitly
acknowledged the existence of rules of interpretation that were believed to
apply to the Constitution.
I have found evidence which suggests that both the advocates and
adversaries of the proposed Constitution expected the Constitution to be
interpreted to well established rules. I also have some ideas regarding
what the rules were.
My proposal/recommendation is that we investigate the "rules" acknowledged
in 1793 by the Court and consider the possibility that the Constitution was
written to be interpreted according to fixed rules and principles.
Anyone interested in this subject is invited to respond.
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PERSON #2
Chisholm v. Georgia
Could you identify where "three of the five justices explicitly
acknowledged the existence of rules of interpretation that were believed to
apply to the Constitution?"
Are you thinking of quotes such as "The ordinary rules for construction
will easily decide whether those words are to be understood in that limited
sense?"
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[quote]
Chisholm v. Georgia
Could you identify where "three of the five justices explicitly
acknowledged the existence of rules of interpretation that were believed to
apply to the Constitution?"
Are you thinking of quotes such as "The ordinary rules for construction
will easily decide whether those words are to be understood in that limited
sense?"
[end quote]
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#2
Yes. That's one of them.
Presented below are two other references to rules of interpretation.
From the manner in which I have viewed this subject, so different from
that in which it has been contemplated by the Attorney General, it is
evident, that I have not had occasion to notice many arguments offered by
the Attorney General, which certainly were very proper, as to his extended
view of the case, but do not affect mine. No part of the Law of Nations can
apply to this case, as I apprehend, but that part which is termed 'The
Conventional Law of Nations;' nor can this any otherwise apply than as
furnishing rules of interpretation, since unquestionably the people of the
United States had a right to form what kind of union, and upon what terms
they pleased, without reference to any former examples.
With the advantage of the letter on our side, let us now advert to the
spirit of the Constitution, or rather its genuine and necessary
interpretation. I am aware of the danger of going into a wide history of
the Constitution, as a guide of construction; and of the still greater
danger of laying any important stress upon the preamble as explanatory of
its powers.
I note that the author of the second excerpt thought it was dangerous to go
"into a wide history of the Constitution" as a method of interpreting it.
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#2
Here is a reference, in Chishom, to a specific rule of interpretation:
The exception contended for, would contradict and do violence to the
great and leading principles of a free and equal national government, one
of the great objects of which is, to ensure justice to all: To the few
against the many, as well as to the many against the few. It would be
strange, indeed, that the joint and equal sovereigns of this country,
should, in the very Constitution by which they professed to establish
justice, so far deviate from the plain path of equality and impartiality,
as to give to the collective citizens of one State, a right of suing
individual citizens of another State, and yet deny to those citizens a
right of suing them. We find the same general and comprehensive manner of
expressing the same ideas, in a subsequent clause; in which the
Constitution ordains, that 'in all cases affecting Ambassadors, other
public Ministers and Consuls, and those in which a state shall be a party,
the Supreme Court shall have original jurisdiction.' Did it mean here
party-Plaintiff? If that only was meant, it would have been easy to have
found words to express it. Words are to be understood in their ordinary and
common acceptation, and the word party being in common usage, applicable
both to Plaintiff and Defendant, we cannot limit it to one of them in the
present case. We find the Legislature of the United States expressing
themselves in the like general and comprehensive manner; they speak in the
thirteenth section of the judicial act, of controversies where a State is a
party, and as they do not impliedly or expressly apply that term to either
of the litigants, in particular, we are to understand them as speaking of
both. In the same section they distinguish the cases where Ambassadors are
Plaintiffs, from those in which Ambassadors are Defendants, and make
different provisions respecting those cases; and it is not unnatural to
suppose, that they would in like manner have distinguished between cases
where a State was Plaintiff, and where a State was Defendant, if they had
intended to make any difference between them; or if they had apprehended
that the Constitution had made any difference between them.
The rule that, "Words are to be understood in their ordinary and common
acceptation" is substantially the same as Sir William Blackstone's rule
that, "Words are generally to be understood in their usual and most known
signification...as their general and popular use." (See Blackstone's
Commentaries on the Laws of England; Book the First; Page 59)
http://www.yale.edu/lawweb/avalon/bl...e/introa.htm#1
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#2
In the following excerpt, from Chisholm, one of the Justices compares the
use of the word "party", in the provision of the Constitution he is
interpreting, to the use of the same word in other sections of the
Constitution. He concludes that the word "party" was intended to mean both
the plaintiff and the defendant in a legal action.
Words are to be understood in their ordinary and common acceptation,
and the word party being in common usage, applicable both to Plaintiff and
Defendant, we cannot limit it to one of them in the present case. We find
the Legislature of the United States expressing themselves in the like
general and comprehensive manner; they speak in the thirteenth section of
the judicial act, of controversies where a State is a party, and as they do
not impliedly or expressly apply that term to either of the litigants, in
particular, we are to understand them as speaking of both. In the same
section they distinguish the cases where Ambassadors are Plaintiffs, from
those in which Ambassadors are Defendants, and make different provisions
respecting those cases; and it is not unnatural to suppose, that they would
in like manner have distinguished between cases where a State was
Plaintiff, and where a State was Defendant, if they had intended to make
any difference between them; or if they had apprehended that the
Constitution had made any difference between them.
The justice may have been complying with Blackstone's Second Rule of
Interpretation, which is,
IF words happen to be ftill dubious, we may eftablifh their meaning
from the context; with which it may be of fingular ufe to compare a word,
or a fentence, whenever they are ambiguous, equivocal, or intricate. Thus
the proeme, or preamble, is often called in to help the conftruction of an
act of parliament. Of the fame nature and ufe is the comparifon of a law
with other laws, that are made by the fame legiflator, that have fome
affinity with the fubject, or that expreffly relate to the fame point.
Thus, when the law of England declares murder to be felony without benefit
of clergy, we muft refort to the fame law of England to learn what the
benefit of clergy is: and, when the common law cenfures fimoniacal
contracts, it affords great light to the fubject to confider what the canon
law has adjudged to be fimony.
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#1
This is the English common law standards of interpretation. I'm not sure
what point you are making. Most of these standards of interpretation just
make explicit what you would infer using common sense and logic.
There are people who claim that the common law was based on the Bible or
the Ten Commandments, but Jefferson disproved that.
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------------------------------------------
[quote]
This is the English common law standards of interpretation. I'm not sure
what point you are making. Most of these standards of interpretation just
make explicit what you would infer using common sense and logic.
There are people who claim that the common law was based on the Bible or
the Ten Commandments, but Jefferson disproved that.
[end quote
-----------------------------------------
#2
One point is that Thomas Jefferson's post adoption opinions on the meaning
of the First Amendment are irrelevant as a guide to the meaning of the
Amendment, because the primary object of legal interpretation is to
determine the will of the legislator at the time the law was made, by the
most natural and probable indicators. Jefferson was not even a member of
the legislative bodies that produced the First Amendment and his famous
letter to the Danbury Baptists was written more than a decade after the
Amendment was written and given legal effect.
However, Jefferson's pre-adoption opinions might be admissible under the
rule regarding subject matter.
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#1
In any case, what about the rules of construction derived from English
common law changes the plain meaning of the first amendment?
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[quote]
In any case, what about the rules of construction derived from English
common law changes the plain meaning of the first amendment?
[end quote]
--------------------------------------------
#2
What's "plain meaning?" The words "establishment" and "religion" in the
First Amendment are ambiguous, in the sense that they were used, at the
time the Constitution was adopted, to signify more than one idea/concept.
"Plain" means:
1 Free from obstructions; open; clear: in plain view.
2. Obvious to the mind; evident: make one's intention plain. See Synonyms
at apparent.
3. Straightforward; frank or candid: plain talk.
The meaning of the words "establishment" and "religion" are not clear, or
obvious, or straightforward. Thus, there is no "plain [unambiguous]
meaning", and interpretation is necessary.
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[qoute]
In any case, what about the rules of construction derived from English
common law changes the plain meaning of the first amendment?
[end quote]
---------------------------------------------------
#2
What, in your view, is the plain meaning of the First Amendment's religion
clauses?
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Quote:
What's "plain meaning?" The words "establishment" and "religion" in the
First Amendment are ambiguous, in the sense that they were used, at the
time the Constitution was adopted, to signify more than one idea/concept.
[end quote]
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#1
I have no idea what you are talking about here. Establishment was a common
concept because the British had an established religion - Anglicanism. That
was precisely what the First Amendment aimed to prohibit, except that they
went further than just forbidding an establishment of religion and rejected
Congress even legislating in the area of anything that even tended to
establish a religion.
And I don't think anyone then was confused about what a religion was. (They
didn't have Scientology to muddy the water).
So I cannot follow your point.
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS ˇ Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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