The Constitution, Madison warned, should not be interpreted ... "
The whole sentence is "The Constitution, he
warned, should not be interpreted as if it were "an ordinary statute,
and with the strictness almost of a penal one.""
(From the New Your Univeristy Law Review, "HOW JAMES MADISON INTERPRETED
THE CONSTITUTION")
What do you think Madison was saying about how to interpret the Constitution?I would say that Madison was a strict constitutionalist, believing that the constitution meant exactly what it said, nothing more and nothing less. That "interpretation" was unnecessary as the meaning was quite clear.
Of course, Madison didn't live in a world gone mad with destruction, or one with the capabilities we take for granted every day. Not even a world where the the very meaning of words has changed after more than 200 years, or where common morality had seen such tremendous strides (good and, perhaps, bad) since the writing. These things do make a difference.How does "Madison was a strict constitutionalist" square with "... should not be interpreted ... with the strictness almost of a penal one."?
Having asked that, my readings of Madison's bio, his notes on the Constitutional Convention, and his part of the Federalist Papers show that he was not a strict constitutionalist, but rather one who thought the interpretation of Constitution should change with time. He even strongly proposed that the federal legislature have veto power over state laws, but was voted down.
Once he became a representative of Virginia, however, he changed his tune and became a State's Rightest. He reversed that course somewhat when he became President.Sounds as if Madison was easily swayed; depending on what view gave him more personal leeway in the position he held at any given time.
That would appear to be true. If you read his thoughts in the Federalist Papers and what he said during the Convention, I think you will find they don't square with his being a representative from Virginia.
You seem to left out a few words in your quote. Words which give it the opposite meaning from what you are trying to do.
Is that being done intentionally for some reason?What did I leave out from the full quote I gave you at the top? My highlighting one phrase did not change it's meaning.one iota.
Aw, c'mon, Esoteric - you can read as well as I can.
"... should not be interpreted ... with the strictness almost of a penal one."
Now replace the elipses with the rest of the story:
""The Constitution, he warned, should not be interpreted as if it were "an ordinary statute, and with the strictness almost of a penal one."
I repeat: was the change in meaning intentional or are you do you really have no comprehension of what you're reading?So tell me, how does including "... as if it were an ordinary statute, and ...) in my abbreviated quote change the meaning one iota?
To ask a slightly different question. What is the difference in meaning between
"The Constitution, he warned, should not be interpreted as if it were "an ordinary statute."
and
"The Constitution, he warned, should not be interpreted with the strictness almost of a penal one"
There is no substantial difference. His full construction sounds much better to the ear.
In any case, to make you happy, I will change my comment to read "How does "Madison was a strict constitutionalist" square with "The Constitution, he warned, should not be interpreted as if it were "an ordinary statute, and with the strictness almost of a penal one."? It asks the same question.OK, I'll bite. One says to interpret it loosely, as in the case of an ordinary statute. This one is not to be followed.
The option is to interpret as if a penal code. This IS the one to use. As I read it you cannot take out the section that the "not" refers to and apply that word to another part of the sentence, which it never did.Well damn, Wilderness, you had me wondering there for a minute. Is this another definition of "Is" argument?
It took a second, but the difference I see is that "and." Don read it to mean a grouping. I read it as a comparison for instruction. And now you appear to read it as a specific choice - Do it this way'
I can see your point that the quote does imply a specific choice, but I think it is the choice of what not to do. The "and" convinces me. Don't interpret it as a loose statute, "and" don't interpret it as a strict penal statute. Take the middle road. The "medium way" he calls it.
Like Don, I see that "and" as linking both statute illustrations back to the stated action; "should not be."
Your view requires that the action be "should be," but the action in the quote is "should not be." That damn "and" insists the strict reading is also linked to the "should not be."
GA.You could be right - it does seem rather vague to me. But he gives two opposing possibilities - "ordinary" and "penal", with the "penal" being qualified with an "almost". I read that as "not the ordinary statute", but with "almost penal strictness", and could easily be wrong. Isolated statements can be difficult to interpret, particularly written in language used 200 years ago.
Others (include you) have said that his general attitude is somewhere in between - I have no problem accepting that. We were asked how we would interpret the statement and I gave my opinion, based solely on the one sentence.OK, here is the letter from which that quote came from. The authors of the article seem to have interpreted the paragraph referring to statutes, both ordinary and penal, such that "should not be interpreted as if it were ..." was what Madison was meaning.
http://press-pubs.uchicago.edu/founders … 18s19.html
The operative paragraph reads:
"Thus it is found that in the case of the Legislative department particularly, where a division & definition of the powers according to their specific objects is most difficult, the Instrument is read by some as if it were a Constitution for a single Govt. with powers co-extensive with the general welfare [this, I think, would be a loose interpretations], and by others interpreted as if it were an ordinary statute, and with the strictness almost of a penal one." {the strict interpretations]
He then goes on to say that the "true" course is somewhere in between, such as GA suggests.Hey guy, I should have come back to this earlier. I just read the letter and realized that the full context makes it more clear that our discussed reference seems to point to the difference in the reading of a constitution vs. a statute - that is the loose vs strict analogy, not the loose vs. strict interpretation of a statute as I initially read it.
It doesn't change the ending point; that Madison was not a strict Texualist, (Constitutionist(?)), but it does raise my curiosity as to what Madison had in mind concerning a difference of readings. How does he think interpreting a constitution is different from interpreting a statute? What causes him to think of one as loose and the other as strict?
Even if it doesn't change the current point, understanding his thought might offer insight for future questions. I think I will try to dig out any references that might be found. Got any suggestions? If not, I'll get back to you if I find anything.
GA"How does he think interpreting a constitution is different from interpreting a statute? What causes him to think of one as loose and the other as strict?"
Earlier in the letter he says the Constitution is not written in "a language technically appropriate". So he seems to be saying that the Constitution is written in plain(er) language (for the time), whereas ordinary statutes are written in legalese for the purpose of reducing their ambiguity.
The full quote is:
"In the Constitution of the U. S. where each of these powers is divided, and portions allotted to different Governments, and where a language technically appropriate may be deficient, the wonder wd. be far greater if different rules of exposition were not applied to the text by different commentators".
My 'translation' would be: it would be surprising if there weren't different interpretations of the Constitution from different commentators, given that it doesn't use strict legal language.
He seems to be lamenting that something called the "Bonus Bill" was ruled to be unconstitutional based on an interpretation of the Constitution. Essentially he seem to be having a bit of a rant about the fact that some people are too liberal in their opinion of how much of the Constitution is open to interpretation, and some are too conservative (but not in the political senses of those words).
I agree with your conclusion that he is saying both extremes should be avoided.Hello again Don,
Your reasoning seems logical and sensible, and, of the times. I think my opinion, at this point at least, would be similar to yours.
After multiple readings of the quote, going back to it over and over, it took me a bit to get to the right comparison to consider - the constitution vs. statute example. And now to consider that two different readings came to the same conclusion - using the same path to get there made me curious.
It would be interesting to be more certain that we, (at least me), are right, with the supporting views of some actual statutes he spoke of, maybe someone's letters or diaries, or even anecdotal recollections. Or even another Madison paper or source that speaks to statutes directly.
It seems probable to me that it could it be as simple as technical or legalese vs. plain language. But I still ponder the "ordinary" qualifier. If it were just the legalese vs. plain language thought, the "ordinary" wasn't needed. I have heard that Madison was very serious about how he used his words.
I'm not really making that argument, just noting that possibility would be interesting to look at.
GAI looked up "Bonus Bill" and found that it wasn't ruled unconstitutional, it was just that Madison thought it was and vetoed it; which makes his letter even more curious. https://en.wikipedia.org/wiki/Bonus_Bill_of_1817
In reading Madison's notes on the Constitutional Convention I ran across several arguments by Madison and others emphasizing the need for the Constitution to be interpreted differently as times change. He seemed to accept the "implied powers" interpretation by arguing that the Bill of Rights was not needed because it was already "implied" in the Constitution. (He finally wrote the Bill of Rights because there would be no ratification without it.)
I would quote those passages but damned if I can find them again, mainly because I refuse to damage a book with annotations for things I want to refer back to. I need to get over that."... mainly because I refuse to damage a book with annotations for things I want to refer back to. I need to get over that."
No, No! Don't change. Good for you, I am the same way.
I am the same way about hard-cover books, (paperbacks don't carry the same weight for me).
I have never thrown a hard-cover book away, even ones I am not interested in. I never dog-ear a page, and I never write on a book's pages - other that a gift notion on the fly-page.
My solution for referencing is post-it notes. Some of my books look like one big ruffled post-its pad.
GAHadn't thought of Post-It notes ... great idea.
Hey there Don and My Esoteric,
I did some looking around and am convinced that Don had the rational of the motive of comparison being discussed in the original quote right:
"Thus it is found that in the case of the Legislative department particularly, where a division & definition of the powers according to their specific objects is most difficult, the Instrument is read by some as if it were a Constitution for a single Govt. with powers co-extensive with the general welfare, and by others interpreted as if it were an ordinary statute, and with the strictness almost of a penal one".
... but I think my original thoughts about the comparison of the two statutes mentioned as being also important, is also correct.
It didn't take long. I jumped around different statutes of the times available on Yale's Avalon Project.
I found statutes like the An Act to Provide for Surveying the Coasts of the United States; February 10, 1807 that were only a few hundred words, and although specific in its authorizations, was less than technical, (or legalesed (LOL)), in its construction or instructions.
Then there were ones like the The Judiciary Act; September 24, 1789 that were thousands and thousands of words and were very technical and specific.
I will stand with my agreement with Don's 'translation', but I am also affirmed in my thoughts that there was more than just legalese and technical vs. plain language in his mind. If you compare the extreme of these two examples, it seems easy to see where a consideration of an act's enforcement or accordance to the letter of the act, may have been less than expected - hence Madison's inclusion of "ordinary," as in a statute considered nothing special or serious to worry about.
The result was worth the effort.
GA
Hey bud, I can see that you did offer your first interpretation, and when first looking at it from your perspective, I saw that possible reading too. But it didn't stand more readings, the "and" was the decider.
But to carry that thought forward, Don, (and others), appear to read the complete quote and see the first comparison boiling down to a reading of the Constitution as a constitution, or a reading of it in the nature of a statute - whatever that means. I sidestepped that question because I haven't addressed it before, and don't have a clue exactly what the difference is.
In this article's context, it seems correct to read the first comparison as lax vs. strict. The second comparison, (constitution vs. statute), also looks to be a soft vs. firm example. I think both interpretations arrive at the same position - Madison was advocating flexibility - not strict interpretation.
Maybe I should have left that last thought alone until I could work on it a bit.
GA, Wilderness is just playing with us. He knows very well how to properly work out sentence structure.
Wait, you mean I've been had - again!
I'm not sure.
Knowing Wilderness' general political and social leanings, I can see how his interpretation could have been his true first impression. When I read his comment, and scrolled back to read the full quote looking for his perspective - I could see it. It didn't stand a second or third reading, but with a certain perspective preconceived, it was there.
So where am I now? Have I been double-had by Wilderness because you were right, and I doubled-down even after your warning?
Or is it you yanking my chain - because you just made that up, and I gave it breath?
Looks like I've been had no matter how it turns out. Geesh!
GAWho are your pronouns referring to, me, Wilderness, both? :-)
Pronouns? You mean like; you is you, I is me, and his is Wilderness, (otherwise his would be your)?
Or is this just another yank?
GA
No, you're wrong. I gave what I would have interpreted it as, given the limited information and that language has changed. Mostly, I took the "and" to be a "but". That "and" just didn't seem to fit according to the language I use, that's all. Bear in mind that I am NOT a historian, and have read very little of the words of our forefathers. Much more interested in the language that Einstein used, composed of only mathematical symbols with no possibility of "interpretation".
But your additional verbiage does put a different outlook on it, and I have to agree with you and GA.I have read that new reference I posted twice now, and am letting my eyes stop watering before I try again, it is definitely obtuse.
Just read it real fast, skipping over what doesn't make sense. Like reading a sentence with every third letter missing, or turned backwards. It helps.
Hello My Esoteric, here is the article I read: How James Madison Interpreted the Constitution. I am far from a Madison scholar, but I did read the article, at least.
Your quote clearly shows Madison advocating some form of flexibility, and if that were all there was to consider, then originalists, (like myself), would lose one of our favorite sources of Constitutional authority. However, there is more, and I would attribute your quote to be first; a view of a pragmatist, (although a highly principled one), which his political history clearly shows him to be, and secondly; the view of a realist, as his comparison of 'ordinary' vs. penal, statute shows his concern both with strict rigidity, and loose, slippery slope distortions. I think your article's description of his position(s) concerning the constitutionality of the Second Bank of the United States illustrates this.
I think Madison would strongly disagree with the concept that the Constitution is a living document, (probably the direction implied by the quote), and propose instead that it is a 'deep' document. It has layers but not water sprouts. That is how I view it, and Madison was a heavy contributor to that view.
GAI don't think it's 'ordinary' vs. 'penal'. The use of 'and' suggest he is grouping the two together. A reading of the original text suggest he is saying the Constitution is being read as 'a Constitution' by some, and as an 'ordinary statute' by others.
The addition of 'strictness almost of a penal one' appears to be an additional qualifier to highlight the difference between 'constitution' (less technical language, so more open to interpretation) and 'ordinary statute' (more technical language that avoids ambiguity). Have a look:
"Thus it is found that in the case of the Legislative department particularly, where a division & definition of the powers according to their specific objects is most difficult, the Instrument is read by some as if it were a Constitution for a single Govt. with powers co-extensive with the general welfare, and by others interpreted as if it were an ordinary statute, and with the strictness almost of a penal one".
I think if you omit the 'and', this would render the intended meaning. So it would be:
'the Instrument is read by some as if it were a Constitution for a single Govt. with powers co-extensive with the general welfare, and by others interpreted as if it were an ordinary statute . . . with the strictness almost of a penal one".
I think the redundant 'and' is an artifact of the archaic language style.
I think this reading is supported by the sentence immediately following the above paragraph: 'Between these adverse constructions an intermediate course must be the true one . . .'
So while he certainly seems to be suggesting the Constitution is open to interpretation vs the strict technical language of ordinary statute (especially penal ones), at the same time he is suggesting a balanced approach is the best approach to take.
http://press-pubs.uchicago.edu/founders … 18s19.htmlI took the meaning of the quote from the article just as you do in that the "penal" was an adjective (I think I got that right) supporting "ordinary statute".
To reverse the reading, he says to me that the Constitution is not constructed to be interpreted like statutes, which must be strictly read. Instead, the Constitution must be interpreted, as you said, in a balanced manner
That thinking is in-line with everything I read about him on the subject prior to joining the new government representing VA. There is no question he changed sides after the Constitution was ratified, because that was in Virginia's interest. He did, however, seem to draw the line at the States "nullifying" the federal legislature.It looks like we are ending up in almost the same spot...
"... he is suggesting a balanced approach is the best approach to take."
... Madison was not a strict Constitutionalist. Examples found, both in the previously linked article, and in his convention notes, easily confirm this. But examples of the end results, and his own statements, show him to be an original Originalist.
The article noted this, relative to his unreleased convention notes, from a Madison letter:
"...As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity feltby every people to trace the origin and progress of their political institutions,... the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be, not in the opinions or intentions of the body which planned and proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses."
Note that he insists the meaning must come from the text, but... adds a bit of flexibility with the addition of a possible second authority ... the people of the state's conventions that ratify it. To me that reads as the words carry the meaning of the times, and that is the middle road of interpretation - an Originalist.
I did considered the "and" in the "ordinary vs. penal" thought. Even though he did group the two together with that "and," they were included as a comparison; lax vs. strict. I did not continue to follow that through to a reasoning of whether that meant a comparison of a statute vs. a constitution, it seems clear to me he means interpretation relative to the times - those times, not all times.
I am still puzzling over your second Legislative department," quote. It too seems to offer an example of confined flexibility - between two offered examples; constitution or statute. So it seems we are discussing the degree of interpretation Madison intended to apply. Which I think was answered by your sentence concluding that quote:
"... 'Between these adverse constructions an intermediate course must be the true one . . .'"
GA
- ahorsebackposted 7 years ago
0That the constitution is the basis of ALL law in America and not to be determined as "Fluid " in any case . Activists for change will argue constitutional fluidity at all costs . While conservatives argue the strictest adherence . Example; The Second amendment ; 27 simple , clear , strict ,well articulated words .- And look at the controversy with it ! In any case , The liberal world would have us all think we can actually change constitutional law to suit the factions of cause.
Sadly , the legal system in America has become the" convenience store" for cause!What in the statement I presented leads you to think " ...and not to be determined as "Fluid " in any case"?
I once naively believed in the Supreme Court as being a fair arbiter of the Constitution, but then I started studying it. I sadly found that the Court is no less partisan (with a few exceptions) than the President and Senate who put them in power.
That is the only explanation for such abominations as Dredd Scott, Jim Crow, Citizens United, and the demunition of the 13th amendment and gutting of the 14th and 15th amendments
Will adjusting The US Constitution make it more perfect?
If so, the adjusters need to state and reveal exactly HOW.Sometimes it does like with the 13th - 15th Amendments and sometimes it doesn't like with the prohibition amendmant.
Benjamin Franklin:
"... I agree to this Constitution with all its faults—if they are such—because I think a general government necessary for us, and there is no form of government but what may be a blessing to the people if well administered; and I believe, further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. I doubt, too, whether any other convention we can obtain may be able to make a better Constitution; for, when you assemble a number of men, to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? 2
It therefore astonishes me, sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our counsels are confounded like those of the builders of Babel, and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, sir, to this Constitution, because I expect no better, and because I am not sure that it is not the best. The opinions I have had of its errors I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us, in returning to our constituents, were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor among foreign nations, as well as among ourselves, from our real or apparent unanimity. Much of the strength and efficiency of any government, in procuring and securing happiness to the people, depends on opinion, on the general opinion of the goodness of that government, as well as of the wisdom and integrity of its governors. I hope, therefore, for our own sakes, as a part of the people, and for the sake of our posterity, that we shall act heartily and unanimously in recommending this Constitution wherever our influence may extend, and turn our future thoughts and endeavors to the means of having it well administered."
http://www.bartleby.com/268/8/11.htmlDo you think Judge Gorsuch would have ratified the Constitution?
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