If you were a Justice on the Supreme Court, which method of interpretation would you prefer?

[TurtleDude]

Decision should be unanimous.

In the words of the murdered Antonin Alito: "Stupid, but constitutional".

WTF is that

you mean A Scalia? Sam Alito is still on the court

 

[maxparrish]

I would use progressive mysticism with a fallback to methodological opportunism. I start looking for meaning in the preamble, note that the purpose of the Constitution is to "provide for the general welfare" and then decide what "welfare" I'd like to see. If, for example, there is a legal case wherein the defendant is complaining because a local government took his property for 10 cents on the dollar, to give to a politician's political buddy for "redevelopment" I use intuition to know how to decide after seeing who the litigants are.

Is the politician and the developers good liberals? Is the victim who is complaining a conservative or Republican? Is the person complaining white or black? Will taking the property further my goal of collectivizing property ownership in the favor of the "all-knowing" state? Giving all this due consideration, I automatically find against Republicans and white folk, and declare the very welfare of the masses are at stake if this property is not seized. (If the politicians and his buddy are Republican, and the victim black, I find in favor of the victim bemoaning corruption of the Republic).

Mind you, sometimes it's hard to find justification for my mystical readings; in those instances I read chicken entrails or gaze into crystals. Other times I dance and shake a rattle, chanting "What about Bush?" and "Fight white privilege".

I always remind myself there are many paths to a predetermined end: poetical readings, mind-reading, sophistry, and appeals to "the side of history".

(Smile)...

 

[Nickyjo]

Their role is to determine if laws are constitutional. Article 3 says nothing about intrpreting The Constitution. In fact, the word "interpret" doesn't even appear in Article 3.

The Constitution was never meant to be interpreted and re-interpreted. What good is it if it can be changed that easily?

They determined that segregation was constitutional in Plessy v Fergeson, then said it wasn't in Brown v Board of Education. Both were interpretations. Was either decision wrong? What other decisions went over your line? How do you decide that something is unconstitutional without interpreting the Constitution?

The 14th amendment's language on "equal protection" begs for interpretation. On what basis would you decide that something is "cruel or unusual punishment"? Ditto due process? How is defining different than interpreting? I repeat that it is waaaay settled, ... though I can appreciate your argument, I think this notion dates from the first generation of our republic.

 

[LaylaWindu]

For me, I would use research. I would start by reading the case history, researching the constitutional issues, research earlier rulings on those constitutional issues, research the arguments put forth by both sides, research the history of the case, research all precedents, and then research some more. That is the job, so I might as well do it right.

Best answer yet. I think this is the start for every decision. Start off with Intentionalist and textualist research, some real due diligence and education followed by a decision based on a mixture of that and Pragmatist.

Natural Law Theorist they way you describe it with a "higher moral law" NEVER would come into play for my decisions and I say that as christian, it has no place or business in my decision at all on any level.

So my answer is, I lean right and I would use a mix of Textualism, Intentionalism and Pragmatist

 

[Cephus]

Textualist, but that means that the SC cannot be called upon to make law because that's not their job. Their job is only to determine if pre-existing law is in keeping with the Constitution and that's all they are supposed to do.

 

[apdst]

WTF is that

you mean A Scalia? Sam Alito is still on the court

Yeah, Scalia.

 

[apdst]

They determined that segregation was constitutional in Plessy v Fergeson, then said it wasn't in Brown v Board of Education. Both were interpretations. Was either decision wrong? What other decisions went over your line? How do you decide that something is unconstitutional without interpreting the Constitution?

The 14th amendment's language on "equal protection" begs for interpretation. On what basis would you decide that something is "cruel or unusual punishment"? Ditto due process? How is defining different than interpreting? I repeat that it is waaaay settled, ... though I can appreciate your argument, I think this notion dates from the first generation of our republic.

Simple: what does "The right of the people to keep and bear arms shall no be infringed" mean?

No interpretation needed.

 

[apdst]

You do realize when you read this post, your brain is interpreting. It is literally impossible to read, hear or see anything and not interpret it. So what you are actually saying is the Constitution was never meant to be seen. That is a kinda really ****ing position to take.

Should a state capital be able to display the Ten Commandments?

 

[Kal'Stang]

1. For Conservatives - Textualism
2. For Conservatives - Intentionalism
3. For Conservatives - Pragmatist
4. For Conservatives - Natural Law
5. For Progressives - Textualism
6. For Progressives - Intentionalism
7. For Progressives - Pragmatist
8. For Progressives - Natural Law

Set up the poll for you.

 

[jimbo]

Sorry, my choice would be common sense.

That may be a laudable goal, but that is not the purpose of SCOTUS. That's Congress's job. SCOTUS interprets the Constitution.

If I were on the court, I would temper literal interpretation with original intent. Leave it up to Congress to fix.

 

[LesGovt]

Set up the poll for you.

I knew how to set it up, but I had posted it and I did not know that one could change the poll setup after it was published. Thanks a bunch!

 

[Fenton Lum]

Irrelevant, combatants are going to use whatever they can to win what they’re after.

 

[AGENT J]

Textualism, Intentionalism and Pragmatist. I feel sticking too concretely to any one would hinder decisions and the country.

 

[Redress]

Just bumping this up a bit to ask a followup question if I may. Today SCOTUS heard arguments. Here is the SCOTUSBlog article on the arguments: Argument analysis: An epic day for employers in arbitration case? - SCOTUSblog. Quote of the part applicable to what I want to ask about:

Today’s argument centered on two federal laws, both of which date back nearly a century. The first law, the Federal Arbitration Act, provides that arbitration agreements “shall be valid, irrevocable, and enforceable.” The second, the National Labor Relations Act, provides that employees have the right to engage in “concerted activities” for “mutual aid or protection.”

So, you have two laws, both apply, but they are mutually exclusive(or seem so). So how exactly do you base your ruling?

 

[OpportunityCost]

Considering the basis for the Constitution, I would be leaning towards a blend of Natural Law/Intent/Text because intent and Natural law are closely linked falling back to textualism when limited intent information is unavailable. I would not touch pragmatism with a 10 foot pole, that's just a way to justify unconstitutionality from other precedents and can lead to trampling both intent and Natural law.

The Constitution was never intended to be pragmatic for government, it was intended to be an impediment to government accumulation of power.

 

[OpportunityCost]

Just bumping this up a bit to ask a followup question if I may. Today SCOTUS heard arguments. Here is the SCOTUSBlog article on the arguments: Argument analysis: An epic day for employers in arbitration case? - SCOTUSblog. Quote of the part applicable to what I want to ask about:



So, you have two laws, both apply, but they are mutually exclusive(or seem so). So how exactly do you base your ruling?

The NLRA as framed is protecting under the right to association while the arbitration act is a pragmatic law seeking to allow employees and employers to avoid costly court battles over disputes. The ability of employees to act together, in concert, to protect their rights is a higher interest than saving money and time in the courts. While the Arbitration Act is a good law with good intent, it should not be chosen over rights of association and the ability to seek redress with the courts simply because it exists. Binding Arbitration agreements could actually tread on those rights.

 

[SmokeAndMirrors]

1. For Conservatives - Textualism
2. For Conservatives - Intentionalism
3. For Conservatives - Pragmatist
4. For Conservatives - Natural Law
5. For Progressives - Textualism
6. For Progressives - Intentionalism
7. For Progressives - Pragmatist
8. For Progressives - Natural Law

I'd use several, but I voted for intentionalism. Fact is, the Founders didn't conceive of a lot of the technologies and ways of living we have now. Pure textualism leaves us empty-handed on a lot of issues. For example, speech on the internet, association in compulsory schooling, etc. On those sorts of issues, if we want to make sensible rulings we don't have any choice but to look at the spirit of the law.

 

[American]

original intent and the actual text.

I'd add Natural Law to that.

 

[LesGovt]

I'd use several, but I voted for intentionalism. Fact is, the Founders didn't conceive of a lot of the technologies and ways of living we have now. Pure textualism leaves us empty-handed on a lot of issues. For example, speech on the internet, association in compulsory schooling, etc. On those sorts of issues, if we want to make sensible rulings we don't have any choice but to look at the spirit of the law.

That's why the Constitution has Article V.

 

[MrWonka]

Here are the definitions.

Textualist: An originalist who gives primary weight to the text and structure of the Constitution. Textualists often are skeptical of the ability of judges to determine collective "intent."

Intentionalist: An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers.

Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision "wrong" on originalist terms because it promotes stability or in some other way promotes the public good.

Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.

Laws don't tell us what is right, what is right tells us what the laws should be. To interpret the constitution you have to put it in context, and understand what the primary fears the founders had, and why they chose to do things the way they did. It's impossible for anybody to predict the future, and the founding fathers wouldn't have had any better luck than anybody else. They knew the problems they were trying to avoid, and they did the best they could to prevent them via the law. The only realistic way to interpret the constitution is to use some common sense and ask yourself if they had anticipated this scenario, and if they could have how would they have viewed it and why.

You also have to realize that while these men were very intelligent for their time and age they were still brimming with misogyny and racism. Many of the rights they wanted for themselves they might not have seen as something that should have been granted to women, blacks, native Americans, gays, muslims, Atheists...... In the modern age we recognize that was wrong.

 

[Russell797]

Sorry, my choice would be common sense.

Which I view as part of #7. We should always strive to enable behaviours which expert opinion deems beneficial to society rather than stubbornly adhering to convention come hell or high water.

 

[LesGovt]

Laws don't tell us what is right, what is right tells us what the laws should be. To interpret the constitution you have to put it in context, and understand what the primary fears the founders had, and why they chose to do things the way they did. It's impossible for anybody to predict the future, and the founding fathers wouldn't have had any better luck than anybody else. They knew the problems they were trying to avoid, and they did the best they could to prevent them via the law. The only realistic way to interpret the constitution is to use some common sense and ask yourself if they had anticipated this scenario, and if they could have how would they have viewed it and why.

You also have to realize that while these men were very intelligent for their time and age they were still brimming with misogyny and racism. Many of the rights they wanted for themselves they might not have seen as something that should have been granted to women, blacks, native Americans, gays, muslims, Atheists...... In the modern age we recognize that was wrong.

Slavery - Resolved by Article V of the Constitution
Women's Right to Vote = Resolved by Article V of the Constitution

I think we should use Article V more and the courts less. There wouldn't be the gnashing of the teeth if Roe v. Wade had been an amendment instead of a court decision.

 

[MrWonka]

There wouldn't be the gnashing of the teeth if Roe v. Wade had been an amendment instead of a court decision.

That's lovely, but you need wide agreement among the states to pass an amendment. Unfortunately, when half the country is made up of nutty religious conservatives that's kind of difficult. Even today there are many states that have laws on the books outlawing abortion if and when Roe v. Wade is ever overturned. Abortion is a right that is likely to only every be executed by a very small % of the population. Expecting Majorities to adimately support it is a pipe dream.

 

[LesGovt]

That's lovely, but you need wide agreement among the states to pass an amendment. Unfortunately, when half the country is made up of nutty religious conservatives that's kind of difficult. Even today there are many states that have laws on the books outlawing abortion if and when Roe v. Wade is ever overturned. Abortion is a right that is likely to only every be executed by a very small % of the population. Expecting Majorities to adimately support it is a pipe dream.

No one has ever said amending the Constitution was easy. With your philosophy, we don't need a Constitution. All we need are five Justices to say that the right to assemble or any other clause of the Constitution is now null and void.

 

[<alt>doxygen]

I think I would approach it:

Start with the text. If the answer is obvious, stop there. If not, move to original intent. If the text and considered original intent don't resolve the case, try pragmatism. Natural law could be applied if necessary.

I'm personally a pragmatist (common sense), but law doesn't always work like that.