Of the indefiniteness of Constitutional terms

[Steven Jamar]

I agree that one should use an author's intent to help define words  
and find meaning.  But the words of a document such as the  
Constitution do not belong just to the person who first drafted them  
or who transcribed them or even to the body that collectively wrote  
them.    The words of the Constitution belong to the people who  
ratified it as well as to the people living under it today.

I do not assume that all words of the Constitution are indefinite in  
all situations.  First, I do not make any such a priori assumptions;   
I do not assume that the words are either definite or indefinite in  
meaning.  Second, I believe I stated clearly that the words have core  
or definite meanings for certain situations but that we cannot find  
hard edges for most of those terms in the complex world in which law  
operates.

It is those cases that extend beyond the core where interpretation is  
required and where the indefinite boundaries of the terms become  
apparent.

The United States government cannot pass a law that makes the Roman  
Catholic Church the established church of the land under the  
Constitution.  This much of the establishment clause is definite.

But when we are trying to decide whether some law is a law  
"respecting the establishment of religion", we run into trouble quite  
quickly.  Does the law need to be targeting religion in some way?  Or  
is any law that affects religion in some way a law "respecting  
establishment"?

Interpretation and line drawing are unavoidable.

Nearly every clause of the Constitution is subject to being pulled to  
extend to things that are beyond the core meaning of that clause and  
is subject to being contracted beyond where it at one time was  
thought to reach.

Madison's world is different from our world in meaningful ways,  
including a number of ways which touch upon religious freedom.  We  
cannot be bound by the Framers' original intent nor one author's  
early interpretation.  Both are relevant to discussion and  
interpretation, but neither are fully binding nor should they be and  
nor can they be.

We contest meaning and reach by drawing on the full range of  
resources at our command including history, rhetoric, logic, "plain  
meaning," societal needs, etc.

One of the main problems in Constitutional Law today is the problem  
of lack of consensus concerning the proper method of constitutional  
interpretation.  One of the results of this lack of consensus is that  
we waste time arguing about how to argue rather than about what the  
terms themselves should mean in the world today in light of all of  
the bases for interpretation we can bring to bear.  If one simple  
takes a stance about how it should be interpreted and cannot persuade  
others to adopt that approach, then one is missing the substance and  
full meaning.

Of course, in Constitutional law, more than any other area, working  
on the way to approach the subject is a fully legitimate area of  
inquiry.  But I respectfully submit that no single method can or ever  
should be adopted as the one method.  None of the justices are fully  
consistent in applying one and only one method.  Sooner or later a  
topic comes up where a particular method simply is inadequate or  
leads to such nutty results that it ought be modified or even  
abandoned as just not sufficient for the needs of interpreting a  
Constitution.

Though I think the government does many things ill-advisedly with  
respect to establishing religion ("under God" in the pledge of  
allegiance; "In God we trust" on money; posting the 10 commandments  
on public property; subsidizing sectarian schools (albeit  
indirectly); etc.), I do not think these things rise to the level of  
a Constitutional violation in general.  A specific instance of an  
action done with a specific religious motivation (e.g., Judge Moore)  
can change the result in a specific case, but for the most part I  
think these things are not really a very big deal.  That my wife and  
others disagree strongly with me on this  and think they should all  
be prohibited and that many others think that the government's  
attempts at staying out of religion indicates hostility only shows  
that this is an area where drawing lines on the basis of consensus is  
very difficult.

And all this to come back to the main point -- while the words carry  
a core meaning, they also have lot fuzziness when applied to the real  
world.

Steve



On Jul 26, 2005, at 8:28 AM, Gene Garman wrote:

> One very obvious way to understand what the Constitution's religion  
> commandments mean is to ask the primary source individual who  
> helped write them. The words "no religious test shall ever be  
> required" (Art. 6., Sec. 3.) and "no law respecting an  
> establishment of religion" are as understandable today and they  
> were when James Madison helped write them. If anyone needs examples  
> as to what those words include, read what James Madison provided as  
> specific examples as to what the words include and mean in his  
> subsequent February 21 and 28, 1811, veto messages and his  
> "Detached Memoranda," William and Mary Quarterly, volume 3.
>
> To assume all the words of the Constitution are indefinite in  
> meaning is a faulty dilemma. For example, it is obvious Ten  
> Commandments monuments are religion monuments regardless of the not  
> even close to "strict constructionist" arguments presented by the  
> majority in Van Orden v. Perry.
>
>
> Gene Garman, M.Div.
> America's Real Religion
> www.americasrealreligion.org
>
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