Information icon.svg

Nominations for the RationalMedia Foundation 2019 board of trustees election are now open!

Talk:Responsive interpretation

From RationalWiki
Jump to: navigation, search
Icon law.svg

This Law related article has not received a brainstar for quality. Please consider expanding the article appropriately. See RationalWiki:Article rating for more information.

Steelbrain.png

Amendments[edit]

Eeck. The Cult of the Living/Breathing Constitution makes the ammendment process unnecessary. HeartGold tx 15:20, 26 May 2007 (CDT)

No. The Constitution sets upper and lower limits, which society can move in between without amendments. Sometimes amendments are necessary to change those upper/lower limits. However, responsive interpretation allows more free movement within the limits.-AmesG 15:23, 26 May 2007 (CDT)
Sadly, this view is all too popular. HeartGold tx 15:31, 26 May 2007 (CDT)

Yeah, America has suffered a lot from responsive interpretation. Especially the segregationists have suffered. Brown v. Board is the textbook example of why responsive interpretation is key. The decision is not pinned upon the original understanding of the Fourteenth Amendment, but on the idea of a Constitution that accomodates societal change (there's huge debate on this subject, see, e.g., Charles Black). Since this subject isn't for sure, let's look at another one. An originalist understanding of the Fourteenth Amendment doesn't protect women, at all. So... I guess sexists have been hurt, too.-AmesG 15:34, 26 May 2007 (CDT)

Living breathing constitution is one way to address such problems. The amendment process is the one specified. When the ends justify the means, the means can be used for purposes you will not agree with. HeartGold tx 15:38, 26 May 2007 (CDT)

And yet the idea of the responsive constitution is one of the oldest around: one of the first, most important Court cases wrote, "this is a Constitution we are expounding," as a way to justify not a document of blackletter law like an ordinary statute, but a pragmatic document that grows with society (McCulloch v. Maryland, Marshall, C.J.). The Court also has a well-settled duty to define positivist law (See generally Calder v. Bull) and to check the majoritarian institutions to ensure against the tyranny of the majority (See Ely, Democracy & Distrust). Finally, but most importantly, let's assume arguendo that the goal of Constitutional interpretation is to stay faithful to the original intent. How do you interpret it? Well, your argument will go, you do so in a manner as objectively reliable as possible, sticking to the values deeply rooted in the nation's history. However, the fact is that textual & originalist interpretation is not nearly as objective as you might think. Different justices come to different conclusions given the same factset and the same goal (cf. Bowers v. Hardwick with Lawrence v. Texas for an example of the failure of originalism). In the end, a "textual" analysis or an "originalist" analysis leads just in the end to a subjective judgment call. Similarly, a textual analysis is often morally bankrupt, and even conservative justices agree (see Holy Trinity, holding that where the plain text of a law would prevent foreign clergymen from working in America, the text should be read to reflect the values of the nation & legislative history, and allow clergy entry).-AmesG 15:47, 26 May 2007 (CDT)

Hey Ames, should this be renamed "Responsive interpretation"? Or even "Responsive interpretation (US Constitution)"? The title seems a bit... odd. Hmm, I also note that our ex-resident legal scholar doesn't appear to have put together a coherent "strict constructionism" article. Just despises any "cultist" who isn't. Ironically, strict constructionists tend to interpret the 2nd amendment very... responsively. humanbe in 00:15, 24 July 2007 (CDT)
Ah, never mind the last question, you wrote "textual". Again, shouldn't quite a few of these (great) articles hvae "US Constitution" appended to them? If you agree, point me to them all, I don't mind doing the moving/linkfixing/deleting - after all, you wrote the damn things. humanbe in 00:18, 24 July 2007 (CDT)

Title[edit]

The title is oblique, can we move this to "Responsive interpretation" at least? Just an idea... humanbe in 01:30, 26 September 2007 (EDT)

Readibility[edit]

I read this twice, and found it very hard to understand. I'm not sure from this article what Responsive Interp really is. Is Ames still around to help water this down or open this up a tiny bit?--Sun mowse.pngEn attendant Godot"«I don't think in any language. I think in images. V.Nabokov» 01:03, 15 March 2009 (EDT)

I doubt it. (him being around to clarify). Maybe we should clean and trim a bit... this might not be on-mission? Email him at his blog? ħumanUser talk:Human 03:51, 15 March 2009 (EDT)