Constitution Lectures 2: Interpreting the Constitution (HD version)
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Constitution Lectures 2: Interpreting the Constitution (HD version)

October 14, 2019


Welcome to Part 2 of our lecture series on
the Constitution. If you haven’t already watched Part 1, I strongly recommend you do
so, as it gives you the fundamentals of where the Constitution gains its legitimacy.
This lecture will, in essence, be about how to read the Constitution and how to determine
the correct meaning from its passages. We hear a lot of politicians and pundits talk
about different parts of the Constitution and what they mean, and often they contradict
each other. Even Supreme Court justices can’t seem to agree. So, how do we determine what
is the right reading? Currently, the two most popular ways of interpreting
the constitution are Original Intent, which seeks to determine the original intent of
the founders, and Living Text, where the Constitution is a living document whose meaning changes
with the times. In this lecture I intend to show that both
of these methods are fallacious, and describe the only rational way the meaning of the clauses
in the Constitution can be objectively determined. Probably the biggest problem with Original
Intent is that this isn’t really a solution at all. The only way we could ever determine
the original intent of the founders is to read their writings, but that poses the problem
of, how are we to interpret those writings? So, we’ve merely pushed the problem back
one step, and are now faced with the task of interpreting words that aren’t even a
part of the Constitution, even if we could be assured that we could get a comprehensive
viewpoint. Another problem, and a large one, is that
there were many different founders with many different intentions. The biggest is the debate
on federalism vs. nationalism—should we have a strong central government that the
states are subordinate to, or should it be a small government subordinate to the states?
This controversy will be covered in Lecture 5. These and other divisions make it impossible
to suggest with any rationality that there is one and only one intention in the words
of the Constitution. In fact, many clauses as written came about
as compromises between these different camps: nationalism vs. federalism, slavery vs. abolition,
and so forth. Each camp had different, even diametrically opposed, intentions, and they
sought to get a little of both in while checking the fears of the others. Basing the interpretation
on intent is made impossible by this. And finally, the founders, in particular James
Madison, specifically said that they never intended for their intentions to be the guide.
They knew how problematic this was. So, if one cannot interpret the Constitution by Original
Intent, what of the Living Text? The essence of the Living Text method is that
the meaning of the Constitution changes with the times. Since We the People ratified the
Constitution, the Constitution must conform to our perceptions and intentions. This is expressed by Congress in the form
of “informal amendments,” and so Congress at any point can pass legislation that would
have in the past been unconstitutional, but by passing it they have made an “informal
amendment” which changes the meaning of the Constitution to allow the legislation
to be legitimate. Also, the Judicial branch, and in particular
the Supreme Court, can declare, in a case presented to it, that the Constitution has
a certain meaning, and from that point on a precedent is set by which all future legislation
and court cases must abide. Again, all of these ideas are specious, and
I will now proceed to explain why. First of all, how, precisely, is the Constitution
supposed to change with the times? In our first lecture, we discussed at length the
idea of consent and where Constitutional legitimacy comes from. Here, we’re changing this meaning
based on what the people want—but who is to say what the people want? And like the
founders, our views and opinions are varied and often mutually exclusive. This is even
more problematic than Original Intent—by a factor of millions! Also, it has been pointed out by many that
a document that can mean anything means nothing. If the Constitution can mean whatever people
want it to mean at the time, then what is the purpose in even having a written Constitution
to begin with? Couldn’t you just skip the whole Constitution business and go straight
to the will of the people? And do any of us really want that? “Informal Amendments” are invalid for
a number of reasons. The biggest is that the Constitution clearly spells out in Article
V how it is to be amended. It allows for no such process of “informal amendment.” Also, the amendment process was made by design
to be quite difficult. They did want the meaning of the Constitution to change when necessary,
but only when necessary. They absolutely did not want illegitimate clauses to be put into
the Constitution. So the Constitution can only be amended with the approval of 3/4ths
of the states. If something really is necessary, it should be able to make it through this
process, and indeed this has happened twenty-seven times since the Constitution was ratified. Also, there is nothing about an informal amendment
that changes the text. The term “amendment” has a specific legal meaning. This is a written
Constitution, and so the process of amendment changes the text. So-called “informal amendments”
don’t do that, and so logically they cannot be said to be amendments at all. And finally, the Constitution is supposed
to limit Congress and the rest of the Federal government. But how can it do that if Congress
can just go and change the meaning of the Constitution whenever it wants to?
This idea of “informal amendments” is not only illogical, it is downright dangerous. The idea of Judicial Reinterpretation is the
most popular. It says that since the Supreme Court is the ultimate arbiter of the Constitution,
then whatever they say the Constitution means is what it means. However, as with Congress, the Constitution
also limits the Judicial branch. The Constitution is there to limit all of the Federal government.
That includes Federal courts, even the Supreme Court. Again, how can the Constitution limit
them if it can just mean whatever they want it to mean? The fact is, there is absolutely nothing in
Article III, the article covering the judiciary, that gives them anything resembling such a
power. And again, Article V says how the Constitution can be amended, and there is no mention of
the courts at all. In reality, this idea has led to morphing
interpretations of interpretations. For example, the word “unreasonable” in the Fourth
Amendment, when describing “unreasonable searches and seizures,” led to the court
allowing for police to conduct a pat-frisk for a weapon. This was reasonable because
it allowed the officer to do his job without fear for his life. However, years later, the
Supreme Court ruled that a police officer could demand an ID from someone who is not
a suspect, and arrest him if he refuses to comply. Their reasoning was that, since demanding
an ID is less invasive than a pat-frisk, then if a pat-frisk is reasonable so is demanding
an ID—completely forgetting the reason why the pat-frisk was reasonable in the first
place. Since demanding an ID has nothing to do with officer safety, it was not found to
be reasonable based on the Constitution, but on their previous interpretation of it. This
obviously is a huge problem. And again, this changes the meaning of the
Constitution without changing the text. As with the other forms of Living Text, this
completely negates the reason for having a written Constitution to begin with. So, if one cannot interpret the Constitution
based on the original intent of the founders, and one cannot interpret it based on the current
times, what is left? What is the only logical way in which the Constitution may be legitimately
interpreted? Once again, we turn to the words of James Madison: Madison said the Constitution should be interpreted
in, quote, “the sense in which the Constitution was accepted and ratified by the nation. In
that sense alone it is the legitimate Constitution. And if that be not the guide in expounding
it, there can be no security for a consistent and stable exercise of its powers.”
Do not confuse this with original intent. What he’s referring to is the original meaning
of the words as they were understood at the time of ratification. This is an important concept in that the meaning
of the Constitution is “locked in” at the time of ratification, and can only be
changed through the process of amendment as provided for by Article V. Unlike Original Intent, this is not ambiguous.
The plain-text reading of the Constitution as the words were used at the time of ratification
allows for clear interpretation of the meaning. Unlike Living Text, this is not changing,
except by the amendment process. Congress cannot change it, the President cannot change
it, the courts cannot change it, and so none of the restrictions on their powers are in
jeopardy. As we will see in future lectures, Original
Meaning handles even the most controversial clauses, such as the Second, Ninth, and Tenth
Amendments, the Commerce Clause, and the General Welfare clause. This still allows for modernization. Since
we’re going by meaning and not intent, we can apply that meaning to our modern world
without having to change it. For example, television and the Internet did not exist
at the time the First Amendment was ratified, yet the meaning of the freedom of speech and
freedom of the press still applies to these new media. Only the technology and methods
are different; the concept is the same. This concept will help us greatly in future
lectures. It will also help you as you listen to politicians and pundits talk about the
meaning of certain passages. Now when you go and read through the Constitution, you
have a basis for understanding the actual meaning of the words, and where any ambiguity
is present, the meaning can be objectively determined with a dictionary of the time,
or by reading the writings of the time, not to determine intent, but how the words themselves
are used and meant. Until next time, stay strong and be free.

Only registered users can comment.

  1. Shane is right everything thunderf00t said in that video reeked of 'spontaneous order'. And he came close to touching on Hayek's paper on group selection and the sources of human values. Yet he still manages to emphasises the 'group' or collective.

  2. MAN, that was lame! QM isn't non-deterministic simply because we can't MEASURE the causes. For example, the ONLY explanation of the double-slit experiment is that individual photons are going through both slits at the same time. That's NOT a measurement problem!

  3. Because it makes it probabilistic. The universe only appears deterministic because, as particles form larger structures of atoms and molecules, the probabilities converge on 0 or 100%.

  4. Nope. That's how radioactive decay works: You can know that half of the atoms will decay over the course of the half-life, but there is NO WAY of knowing WHICH half.

  5. Well that's not the only explanation. You could also get into the many worlds interpretation mindfuck where nature is still deterministic but only because every possibility happens.

  6. Yes, particles pop out of nowhere. It's not the full story; they form in pairs, one matter, one antimatter, and then annihilate each other, unless something stops them from doing it (the Casimir Effect, Hawking radiation, the Inflationary Period).

    And they DO obey a law: the Uncertainty Principle. It's called that for a reason.

  7. We're NOT trying to predict it with our limited senses. The UNIVERSE is unable to predict it because of the Uncertainty Principle.

  8. A copy of you winds up in each universe. It only appears probabilistic because you are not aware of the other universes. Looking back on the branches that your particular instance of you experienced, it looks probabilistic, but if you could see every single instance, it wouldn't be probabilistic, it would be deterministic.

  9. Actually, YES IT DOES! That's what "deterministic" means–YOU CAN DETERMINE IT.

    Well, you CAN'T. There is NO WAY for ANYTHING in the universe to know with precision both the position and the velocity of a particle. It CAN'T be determined, so it's NOT deterministic. BY DEFINITION.

  10. And QM says otherwise. It's not that it's impossible to know; QM completely refutes the notion that you could predict each and every little thing if you could only gain the knowledge somehow. There is NO knowledge to have, because there IS no route. Only an entangled web of probabilities on probabilities.

  11. Except that in the case of QM it doesn't have to take any certain path. The best you could possibly do is the Other Worlds theory making ALL of the possible paths occur, but even then you'd have no way of knowing which of those universes you'd end up in.

    If the Other Worlds theory isn't true, then you're just flat-out wrong.

  12. So, you know the meaning of the universe then. I just wanted to check.

    To darkfireball12,
    Lord, I have always waited for this day to meet you. I know this is indeed you since you know the meaning of the universe. Please tell me why the universe and all that consists of it exist since you are the only one with the answer.

    Sincerely,
    Mauha Deeb

  13. I indeed am a "dumbass" in comparison to your almighty knowledge, my Lord. But please, Lord, show me how you know the universe "has no beginning or end". Please! I am longing for the answer NO MAN HAS WHETHER IT BE INSTINCTUALLY OR INTELLECTUALLY. Please give me the power to understand such a magnitude of knowledge, I beg it of you.
    Your lowly servant,
    Mauha Deeb

  14. Dear the one formally known as my lord,
    I am ashamed that you double think-double talk of your own existence. You claim "the universe has no beginning or end" then claim that "something can't come from nothing". You have shown that you do not have the answers nor the power to ever know. Please renounce your stature as the know-all-be-all and come back to the earth with the rest of the humans that do not have a definitive answer but can only speculate.
    Once truly yours,
    Mauha Deeb

  15. To the mere man,
    We have established you are not the lord, so we have no reason to believe your existential nonsense more than any other false prophet. If there is a God, may he strike you down for claiming to hold the knowledge of the Almighty over any other man on earth.

    Regards,
    Mauha Deeb

  16. P.S. For the sake of human kind, please stop asserting that you know the universes lack of origin is. You are knocking all of mankind down with the idea that you KNOW that the universe was always here. You, a human, do not have the ability nor data to prove that. So KNOCK IT OFF. It is your speculation and nothing more. To assert it as fact makes you no better than a Christian who believes God was always here here.

  17. I can't. You can't either. That is the whole point. There is no possible way to prove any of it. Until then all we have is theories and speculation, but to take an opinion with no proof and call it fact is ridiculous. We can't prove God does or does not exist just like we can not prove the universe was created or always existed. We can speculate all we want, but it doesn't simply become fact because you say so.

  18. Dude, just save your time. I spent 3 hours arguing with this guy over the War on Terrorism. Call it a hard shell to crack, whatever the case is. Just drop it, he's not worth the effort in commenting back (but seriously, this guy needs to step off his keyboard and do something else besides being on YouTube and the computer).

  19. @cristoballs Just like with words today, the particular meaning is made clear in context. Especially in the case of the Constitution, since in the debates they were very careful about making sure that there was one clear meaning of the words they chose.

  20. @HerrSchenkel That's the wrong interpretation. The Constitution does NOT grant rights. You have the rights regardless of whether or not they're in the Constitution. So even if someone does claim it's not in the First Amendment, that just means it's covered by the Ninth Amendment.

  21. @HerrSchenkel This is exactly the problem Alexander Hamilton had with the idea: people would forget that the Constitution is supposed to enumerate powers of government, not rights of the people.

  22. @shanedk I'm curious about how you view another point of interpretation. You specifically mentioned technology and offered an example of a way that a Constitutional concept (eg. protection from abridgment of speech) is easily adaptable to a new technology. Under your view would the Constitution require amendment before Congress could create an independent Air Force? Article I grants Congress the power to create an army and a navy, not an air force. Your thoughts?

  23. @MonkeyPythagoras The Constitution doesn't make distinctions like that. The Air Force was originally the Army Air Corps, and there's nothing unconstitutional about that. The Navy also has its own air squadrons.

    Making the Air Force separate from the Army didn't change what the government was actually doing, and that's what the Constitution is concerned with.

  24. @shanedk Yes, but if the issue is one of Congress acting within it's granted powers is there no legitimacy to the point that Congress has not been granted power to create an *independent* military arm called an Air Force? My question is wouldn't the Constitution *require* all such forces to remain under Army or Navy authority? If not, why not, other than it is convenient/efficient to have an independent Air Force? [ I'm quite happy w/USAF, this is a question of Constitutional consistency.]

  25. @shanedk BTW I might add that the Constitution most certainly does "make distinctions like that" otherwise they might have stated "the military forces of the Republic" or some such generality rather than designating "an Army" and "a Navy". I'm happy to agree that we shouldn't be limited to the technological horizon of the late 18th century, but doesn't that create an opening for similar logic to undermine the principle of interpretation you're advocating?

  26. @MonkeyPythagoras Powers deal with what the government can do, not with what it can call stuff. By your logic, the Marines would be unconstitutional, wouldn't they? Yet, I don't know how any of the founders would have a problem with it (other than the whole standing army thing, which is a whole 'nother story.)

    They're all under CONGRESSIONAL authority. That's the point.

  27. @MonkeyPythagoras The reason for the distinction was that, while they had no problem with a perpetual Navy, they didn't want a standing Army, so they restricted Congress to only funding it for two years at a time.

  28. @shanedk The Marines are a part of the USN. I agree with your point that they are under Constitutional authority and that is the essential point. Thanks for your responses.

  29. @shanedk Regardless of *why* they chose to make such a distinction doesn't your interpretive position leave you in a bind since the founders *did* create this distinction and we are not free to expand the powers of Congress beyond what appears in the words of the Constitution itself regardless of intent? If we are free to reason our way out of such inconveniences in this case we not vulnerable to other such rationalizations by others on more serious points? Perhaps I just misunderstand you?

  30. @shanedk Oh I have. I was referring to the fact that the COnstitution was not ratified by "We the people of the United States" but rather by individual states. So it is the compact between the states, not between the entire "people of the United States". States created the federal gov't and can function without it, but it can't function without them.

  31. Your lecture is absolutely, unequivocally awesome. Let me be clear…..a-w-e-s-o-m-e. I am recommending your series to everyone I know. You should put it on DVD and get a grant from the government or ACLU to distribute it in every post office in the country. The people should have the right to access a clear and plain description of the CSTN at no cost to them. You are a true patriot. Who are you?

  32. I don't know if this has already been addressed (or will be addressed in a future video), but what is your opinion on the process of judicial review? My understanding is that the process was established under Marbury v. Madison in 1803 under a technicality and the Constitution makes no mention of the Supreme Court (or any other federal court for that matter) having this power.
    As a sidebar, I completely agree with proconsulaugustus that this lecture series is incredible.

  33. @phenagan001 Article III gives the Supreme Court full jurisdiction over all controversies arising under the Constitution.

    It's really just nullification; the problem isn't that the Supreme Court is doing it, it's that people think ONLY the Supreme Court can do it!

  34. You did a great job refuting the Original Intent and Living Text positions. But Doesn't your Original Meaning thesis have some of the same problems as the Original Intent position? For example, you said that to determine the meaning of any given clause in the constitution, we need only refer to a dictionary of the time of ratification, but how do we know the true meaning of the language within that dictionary?

  35. @Sewblon And what if two dictionaries of the time of ratification have two mutually exclusive definitions of the same word? What if the same word has mutually contradictory meanings within the same lexicon? Such as the word "sanction" which can mean either to allow or prohibit? Isn't your thesis merely moving the problem to interpreting the lexicons and definitional treatises of the time of ratification and giving us more research to do rather than solving the problem once and for all?

  36. @Sewblon "you said that to determine the meaning of any given clause in the constitution, we need only refer to a dictionary of the time of ratification, but how do we know the true meaning of the language within that dictionary?"

    There are practical examples in later lectures.

  37. @Sewblon It isn't just blindly looking at a dictionary. It's also reading the debates at the ratifying conventions and figuring out, not what they intended to do, but what they understood it to mean. Subtle yet important difference.

  38. @Sewblon

    "What do you mean by "rational"?"

    You can look up the definitions of "Rational" and "Rationalize", they are very different things.

    Rational means a clear logical and reasonable thought process that leads to a fair and reasonable conclusion.

    Rationalize means start with a conclusion and invent any twisted insane path of logic that leads to the predetermined and desired conclusion.

  39. @Sewblon

    As an example –

    The history of the dictatorial & political Catholic Church and the state imposed Church of England, lead to the separation of Church & State in the Bill of Rights.

    The Bill of Rights say (paraphrased) that govt stays out of religion, but the historical context clearly & equally intends Religion to stay out of Govt.

    This is an amendment that is intended to prevent the tyranny of religion, & it is a door that swings both ways.

    That is a rational interpretation.

  40. @Sewblon

    An irrational interpretation is that the founders were all religious men who envisioned that someday corrupt televangelists would impose a Theo-Fascist government.

    See the difference?

  41. @shanedk But we still need a way to determine the original meaning of the words in the records of those debates other than the original meaning of the document that we are trying to interpret or else we are just arguing in a circle.

  42. @Sewblon Come on, you're acting like it's difficult! Like we're helpless to understand Shakespeare or anything.

  43. @shanedk My point isn't that determining the meaning of the words in the debates is especially difficult. Rather, I meant to express that there is no reason to think that determining the original meaning of the words in the debates is less difficult than determining their original purpose. So I don't see what advantage Original Meaning has over original intent in terms of simplicity.

  44. @vspqbd That is technically accurate, but as the English language evolves over time, won't the original meaning of the constitution become progressively harder for future generations to discern?

  45. @Sewblon Because their intent varied all over the place, but they all agreed on what the meaning of the final product was.

  46. @shanedk Ok now I think that I get it. So original meaning gives us a coherent interpretation of the compromises between the various positions represented in the debates that made it into the constitution. Whereas original intent does not.

  47. @Sewblon

    "you never gave an example of a rational interpretation. "

    Sorry, but a rational interpretation is exactly what I gave.

    Either my interpretation is rational, or you are not? One or the other.

  48. oooo K, you have no training in law. And this is basically your opinion. Which is fine, but that is all it is.

  49. What if you live in a country that doesn't have a constitution as consistent as the US one is? Yes the US constitution is covered with fallacies and flaws from beginning to end, but at least it's something. What are we supposed to do? That's not fair…

  50. what exactly is the difference between "logical examination" and opinion? An opinion is not a bad thing, it can be based in logic, and be accurate. But your logica examination as you put it is phrased in an authoritative manner, with out reference to the "examinations" of others who in fact do have extensive training in the law.

  51. "what exactly is the difference between "logical examination" and opinion?"

    Logical examination is an analysis of all of the relevant facts using well-established rules of objective logic. Opinion is just stating what you feel. You can state a differing opinion all you want, but if you want to argue against logical examination, you have to provide reasons why the logic is faulty.

  52. By quoting James Madison, doesn't this make the "Original Meaning" Interpretation too much like the "Original Intent" Interpretation?

  53. Sigh…No, because, YET AGAIN, I'm using his words to understand THE MEANING OF THE PHRASE rather than the intent of the amendment.

    Is this really so hard to understand?

  54. It kinda is, you say that all the framers have different interpretations, why choose Madison's Interpretation over everybody Else's?

  55. When they came up with the second amendment, they couldn't have imagined tanks, fighter jets, nuclear submarines or ICBMs, could they?

    By the way, a militia means a civilian military force, right?

  56. Yes, militias are made of civilians who can be called into service by the state or by Congress.

    As for the second amendment, the line is drawn where the weapon cannot be targeted against aggressors. Nuclear weapons kill everyone in an area regardless of whether or not they're committing crimes or threatening others, so they shouldn't be allowed. But machine guns CAN be targeted solely against aggressors, so they should be allowed.

  57. Forced into service? I'm talking about an anarcho-capitalist militia where people can carry whatever weapons they want!

  58. I cannot really see your logic here. A nuclear weapon (or lets say a big fucking bomb so we don't have to take nuclear fall out into account) targeting an area where only the aggressors are, surely only kills the aggressors the same way a machine gun targeting an area with only aggressors only kills the aggressors. My point is that almost every weapon can be used to target only aggressors depending on usage and situation and where to draw the line is arbitrary and up for discussion.

  59. I was talking about what it meant at the founding of this country.

    In a purely anarcho-capitalist society, armed people–if they became organized at all–would be self-organized, and I don't know if that technically conforms to the definition of a "militia."

  60. "A nuclear weapon (or lets say a big fucking bomb so we don't have to take nuclear fall out into account) targeting an area where only the aggressors are,"

    You'd need a HUGE area where EVERY SINGLE PERSON THERE is an aggressor–no innocent bystanders, no civilian noncombatants, no children–AND, since it leaves a lot of nasty radiation behind, it'd have to be a place where no one other than an aggressor would ever go until the radiation drops! Now really, what are the chances of that?

  61. In fact, I don't even think you could say the same thing of a military base, since a military base often houses the families of the soldiers as well.

  62. My definition of a militia is civilians carrying weapons of all kinds and they themselves choosing if they want to voluntarily participate in defense or not. Not coercive military service like you said.

    In short, military -> government and militia -> civilians.

  63. "When they came up with the second amendment, they couldn't have imagined tanks, fighter jets, nuclear submarines or ICBMs, could they?"

    Bad argument, since the Constitution has a mechanism for it to be amended when circumstances change.

  64. Most likely a domestic threat against the own country would hide among the population to keep anything like that from happening, however unlikely.

  65. 'What, then, distinguishes someone carrying a gun who's part of the militia from someone carrying a gun who isn't?'

    I'm not sure I understand that.

  66. I'm wondering how your definition of the word "militia" is any different than simply "people with guns." Because if it isn't, I wonder what's the purpose in having the term "militia" to begin with.

  67. Exactly what I wrote. The "they couldn't have imagined" argument fails because the founders did imagine that circumstances changed and made a method for the Constitution to be amended because of it, instead of simply ignored.

  68. It's interesting how both parties and the judicial system have differing ideas of how the constitution reads.

  69. If you should happen to do a longer and more thorough version of this video, one additional issue that I would like to see addressed is the fact that the Constitution is intentionally vague at times, specifically to allow more open judicial interpretation.  For example, what is a "cruel and unusual punishment", as described in Amendment Eight?  If you look at the original meaning of those words, they are still vague.  So, at times, there is necessarily more to interpreting the Constitution than finding the original meaning– but I would say that those instances should be limited specifically to those instances.  In other words, original meaning should override when it can.

  70. Someone mentioned how the it "changes to fit our current circumstances" and said thet it can be interpreted for standing militias to put down other rebellions like shays rebellion.

    He also was trying to push how individuals should not have ar 15s and wd shouod have to go through training to have one.

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