Ray Bradbury said, ""

On the Constitution: Interpretation

GeoBandy raised some objections to my method of interpreting the Constitution. He said:

By constructing your inferences based on the definitions of individual words, and using modern definitions and usages, haven't you introduced the same kind of temporal bias that the "living document" people introduce?

First, unless you have access to a 1787 dictionary, you are assuming that the meaning of the word was understood to be the same in 1787 as in 1949 (the year of your source), and that the idiomatic usage of those words also has not changed in any way. But the usages of words do change. For example, "prove" in the sense of "test", as in "the exception that proves the rule". Second, how many words do we read and write - and understand - every day, in ways that do not precisely match the dictionary definitions? How many of those words were understood in exactly the same way two hundred years ago? Or will be, two hundred years from now?

For example, your inference number 14 concerning domestic tranquility. You say it is the prevention of coercive interference with lawful rights. In historical context, it is at least as likely that they were referring to border squabbles between states, which had, within the memory of the framers, at times escalated to actual armed conflict; vigilante mobs, Indian raids, and trade and tariff disputes between states.

I think you have fallen into the trap of studying the trees so closely that you can not observe the forest. The guys who actually wrote the Constitution were for the most part professional politicians, not political philosophers, and I think the Constitution is much better understood in historical context than through word by word analysis using 20th century understandings of those words and reading into it the analyzer's philosophical application of those words.

In my judgment, the Preamble is really quite simple. "The Articles of Confederation stink, we need a more perfect union, in order to do all these things, which are the things a government should do."

The most important phrase is the first: "We the people of the United States". Thomas Jefferson, and southern Jeffersonians for years to come, never quite grasped the true significance of that phrase. Patrick Henry got it immediately, and was outraged. The Articles of Confederation were essentially an agreement between the states. The Constitution did not derive its authority from the states, but directly from the PEOPLE of the UNITED STATES.

The "Constitution" as understood in Anglo-American law at that time, was the collection of natural rights and duties with which government had no authority to interfere, even a duly elected government acting with the approval of the people being governed. (See James Otis' arguments on the Writs of Assistance case, for example). Hence, judicial review: a popular law enacted by a representative government can still be unconstitutional, because no goverment has the authority to interfere with the natural rights of the people, even with their consent.

What was novel, and led to the adamant demand for a Bill of Rights, was the idea of a written Constitution. The fear was that the rights in the Bill of Rights, if not also written, would come to be viewed as somehow less significant than the powers and duties which were written down.

I responded:

I can make no claim to absolute accuracy in the definitions, nor am I making one. I am only going on what I, as a native English speaker, view as the most common and unchanged meaning. I may error, in which case I have my handy glossary in the back of both my copies of the Federalist Papers explaining the changes various words have undergone, yet my error lies in a quite different manner than those who would invent new meanings of words to encompass their own agenda.

Must I point out that border squabbles, being violent trespass of property, are unlawful infringement of rights? Armed conflict is a disturbance whether between private citizens, state militias, or domestic and foreign powers; the definition also encompasses any infringement of lawful rights.

The historical context is acquired through the writings of the founders at the time. I assume that their choice of words and manner of speech is a product of their judgment and that while the words themselves are supplemented by external statements of intent, their meaning is such that they may be reasonably understood without those supplementary materials.

Your point about the Preamble is partly right. "Government can, and should do these things," but it it states it in such a way that the interaction between those functions can be inferred.

I will get to the arguments in the Federalist #84 and the Anti-Federalist arguments, concerning the existence of a Bill of Rights, after I have gotten through the Constitution.

He responded to that:

I'm also a big fan of the Federalist Papers...which were written after the fact by guys pushing their particular interpretation.

I don't necessarily disagree with any of your conclusions, but in your methodology I think you're doing a bit of what you object to. You're reading your understanding back into the language. My point on your inference no. 14 isn't that you can't interpret it as broadly as you have, it's that you don't HAVE TO, and it's very unlikely that everybody at the Convention did interpret it that broadly, or on that sort of philosophical level. And your statement that the preamble "states it in such a way that the interaction between those functions can be inferred" is correct. However, it's also stated in such a way that the interaction between those functions might well be inferred other than the way in which you have done so. Or they could be taken at face value without any further inference at all.

I must disagree with your statement that the historical context "is acquired through the writings of the founders at the time." I think the historical context has to be considered much more broadly. While the Federalist Papers are well known, and the voluminous writings of Thomas Jefferson (who in fact had no role in writing the Constitution) are well-known, have you ever heard of anyone studying the writings of Jacob Broom or Jared Ingersoll? Yet they were present, and since only one member is known to have broken faith with the other delegates and compiled a rather extensive set of notes, what we know of the actual thoughts and words of the individual delegates is very limited, and from only that one perspective.

The Constitution was not intended as an exercise in political philosophy, but as a generalized legal foundation for a civilized society, and I don't think it can be examined apart from the day to day events in that society, the events which led to its drafting and ultimately to its adoption.

Before the ink was dry there were varying interpretations as to what various clauses or phrases meant. And whether you call it "interpretation" or "inference" or "construction", it all amounts to the same thing. If the Constitution was, and is, to have any application, it has to be interpreted. The real issue is where the line is crossed, and "construction" becomes "invention". Considered in this context, is the absurd "penumbra" within which secret rights are suddenly discovered really any more of an invention than judicial review? Or the authority of the federal government to charter a bank? After all, you can't find those things in the Constitution, either, unless you apply a little "inference" and "interpretation".

His criticisms are well-founded.  My methodology is to interpret the Constitution according to my own judgment and understanding, neither of which I can claim perfect, and both of which are certain to error. I am applying my own judgment to what I believe our founders meant.

I see that there are two forms of error possible in interpreting the Constitution: to err by misunderstanding, and to err by invention. The former neither I nor anyone else can fully defend against, for doubtless we will attach different significance to various words. This form of error can be mitigated by relying on supplementary materials eludicating the Founders' own judgment and the understanding that the words they chose still preserve their original meaning with their evolution recorded in dictionaries and glossaries. This form of error is one of approximation. It is an approximation not from a blank understanding, admitting of arbitrary interpretations, however, but from a general and sometimes rough, sometimes clear, understanding of the Founders' judgment. This error can be reduced by keeping in mind that the meaning of the Constitution is not arbitrary, not nebulous, and not an unknown which we can fill in with our own fantasies.

The latter form of error involves invoking arbitrariness to some degree.  It may be intentional or unintentional. I may error in assigning a meaning to a word according to my 1949 dictionary which is completely different than our Founders used.  A man might error by literally inventing a new and novel meaning of a word. Yet notice the difference between the interpretation of these errors. If one accepts that the Constitution bears a meaning which is not arbitrary,  this form of error can be mitigated by constantly checking one's assumptions against a standard. If one believes the Constitution has no meaning but what he or his generation assign it, than he will have no standard against which to check his assumptions. If one treats the Constitution in one way, these errors can be spotted and dealt with, if one treats it the other way, these errors are not even noticed, and are in fact embraced. If one treats the Constitution as if it possesses an arbitrary meaning, the criteria for debate change.

I hold that the Constitution is not arbitrary, that I can understand its meaning as close as any human can get through reason, that my understanding of its language can be aided through supplementary texts, that the standard to which I must hold my judgment must be the meaning assigned to it by the Founders, and that for these reasons my errors can be spotted as such and admit of correction.

Posted by: Tom "The Pooklekufr" Treloar at May 24, 2005 05:52 EST | Permalink | comments |
constitutionalism, pooklekufr constitutionalism

Comments open but moderated. I reserve permission to kill spammers on sight.

This site is a member of WebRing. To browse visit Here.