jump to last post 1-4 of 4 discussions (38 posts)

The Constitution, Madison warned, should not be interpreted ... "

  1. My Esoteric profile image88
    My Esotericposted 5 months ago

    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?

    1. wilderness profile image95
      wildernessposted 5 months ago in reply to this

      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.

      1. My Esoteric profile image88
        My Esotericposted 5 months ago in reply to this

        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.

        1. Live to Learn profile image81
          Live to Learnposted 5 months ago in reply to this

          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.

          1. My Esoteric profile image88
            My Esotericposted 5 months ago in reply to this

            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.

        2. wilderness profile image95
          wildernessposted 5 months ago in reply to this

          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?

          1. My Esoteric profile image88
            My Esotericposted 5 months ago in reply to this

            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.

            1. wilderness profile image95
              wildernessposted 5 months ago in reply to this

              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?

              1. My Esoteric profile image88
                My Esotericposted 5 months ago in reply to this

                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.

                1. wilderness profile image95
                  wildernessposted 5 months ago in reply to this

                  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.

                  1. GA Anderson profile image85
                    GA Andersonposted 5 months ago in reply to this

                    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.

    2. GA Anderson profile image85
      GA Andersonposted 5 months ago in reply to this

      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.

      GA

      1. Don W profile image82
        Don Wposted 5 months ago in reply to this

        I 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.html

        1. My Esoteric profile image88
          My Esotericposted 5 months ago in reply to this

          I 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.

        2. GA Anderson profile image85
          GA Andersonposted 5 months ago in reply to this

          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

  2. ahorseback profile image44
    ahorsebackposted 5 months ago

    That 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!

    1. My Esoteric profile image88
      My Esotericposted 5 months ago in reply to this

      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

  3. Kathryn L Hill profile image86
    Kathryn L Hillposted 5 months ago

    Will adjusting The US Constitution make it more perfect?
    If so, the adjusters need to state and reveal exactly HOW.

    1. My Esoteric profile image88
      My Esotericposted 5 months ago in reply to this

      Sometimes it does like with the 13th - 15th Amendments and sometimes it doesn't like with the prohibition amendmant.

  4. Kathryn L Hill profile image86
    Kathryn L Hillposted 5 months ago

    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.html

    1. My Esoteric profile image88
      My Esotericposted 5 months ago in reply to this

      Do you think Judge Gorsuch would have ratified the Constitution?

 
working