A Journal for Western Man

 

An Integrated View of the American Historical

Debates on Interpreting the Constitution

G. Stolyarov II

Issue CVII - June 19, 2007

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Principal Index

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Old Superstructure

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Old Master Index

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Contributors

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The Rational Business Journal

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Forum

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Yahoo! Group

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Gallery of Rational Art

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Online Store

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Henry Ford Award

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Johannes Gutenberg Award

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CMFF: Fight Death

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Eden against the Colossus

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A Rational Cosmology

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Implied Consent

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Links

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Mr. Stolyarov's Articles on Helium.com

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Mr. Stolyarov's Articles on Associated Content

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Mr. Stolyarov's Articles on GrasstopsUSA.com

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Submit/Contact

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Statement of Policy

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            It is a mistake to think that debates on the meaning and proper interpretation of the U. S. Constitution are settled. Historically, a number of eminent thinkers have suggested a wide variety of approaches toward this important founding document. Here is a view of constitutional interpretation that picks from the best American history has to offer.

            On the matter of who ought to authoritatively interpret the Constitution, I agree with Thomas Jefferson and Andrew Jackson that each department of the government ought to interpret the Constitution as it sees most proper within its own sphere of jurisdiction; this is consistent with John Marshallís insistence that judges should be allowed to act in accordance with their oaths to uphold the Constitution. Yet since legislative and executive officials have also sworn such oaths, it would be contrary to those oaths to require such officials to condone or enforce laws which they consider unconstitutionalóeven when those laws have been explicitly upheld by the Supreme Court.

            John Marshallís argument for judicial review demonstrates convincingly that the Supreme Court should judge the constitutionality of the laws put before it, but not that it should be the altogether exclusive judge of constitutionality. The autonomy of each departmentís constitutional interpretation does not preclude the use of voluntary persuasion and debate among the officers of all the departments in deciding constitutional questions. Furthermore, the criteria Abraham Lincoln gives for what constitutes a valid judicial precedent might be used as prudential criteria by other departments as to whether to voluntarily accept or reject the Supreme Courtís interpretation of the Constitution. Lincolnís criteria work better when judicial decisions are not automatically binding on the other branches, since then the other branches can actually refuse to abide by a decision objectionable under these criteria, instead of simply complaining about it.

            On the matter of how the Constitution ought to be interpreted, I support a strict reading of the original textóas it was intended to be read by the Framers; in this I agree with both Jefferson and Lino Graglia. The Tenth Amendment clearly indicates that the governmentís exercise of any powers not expressly delegated to it by the Constitution is unconstitutional; any textual ambiguities about the scope and extent of the delegated powers can be resolved in principle by examining the writings of the Framers. While resolving any given dispute might be difficult and require extensive historical research as well as taking sides in debates in which the Framers themselves participated, this should not deter the prudent constitutional interpreter from undertaking the endeavor.

            Certainly, such a principled approach where the principle might sometimes be difficult to apply is superior to William Brennanís approach, which altogether rejects a meticulous adherence to the Constitutionís text and replaces it with a vague constitution of Brennanís invention which can mean whatever Brennan wants it to mean. The occasional difficulty of determining the Framersí intent does not imply the need to give up on the project of seeking to determine it; it certainly does not give judges the license to disregard the Constitutionís actual text.

G. Stolyarov II is a science fiction novelist, independent philosophical essayist, poet, amateur mathematician, composer, contributor to Enter Stage Right, Le Quebecois Libre,  Rebirth of Reason, and the Ludwig von Mises Institute, Senior Writer for The Liberal Institute, weekly columnist for GrasstopsUSA.com, and Editor-in-Chief of The Rational Argumentator, a magazine championing the principles of reason, rights, and progress. Mr. Stolyarov also publishes his articles on Helium.com and Associated Content to assist the spread of rational ideas. His newest science fiction novel is Eden against the Colossus. His latest non-fiction treatise is A Rational Cosmology. His most recent play is Implied Consent. Mr. Stolyarov can be contacted at gennadystolyarovii@yahoo.com.

This TRA feature has been edited in accordance with TRAís Statement of Policy.

Click here to return to TRA's Issue CVII Index.

Learn about Mr. Stolyarov's novel, Eden against the Colossus, here..

Read Mr. Stolyarov's new comprehensive treatise, A Rational Cosmology, explicating such terms as the universe, matter, space, time, sound, light, life, consciousness, and volition, here.

Read Mr. Stolyarov's new four-act play, Implied Consent, a futuristic intellectual drama on the sanctity of human life, here.