Northern Arizona University/Philosophy of Law/Discussion of Online Texts/Weeks 1-4
01/27/07 Critical question #1 In Philosophy in the Debates at the United States Constitutional Convention of 1787, page115, Edmund Randolph is reported as condemning “the construction of the Senate based on the peerage of the States [as] being a stroke for aristocracy.” I take this to mean that Mr. Randolph feared a Senate comprised of wealthy and educated elite apart from, to use modern terminology, the blue-collar society to which most citizens belong. An aristocracy insensitive or even unaware of the political position, ideals, and desires of the majority of Americans would be the result. Has the aspiration to a real democracy, a government for The People and not just for A Few People been undermined by the establishment of a Senate? I am curious to know if more harm than good has come from what in theory-a representative group of people installed to keep a check on the Executive branch-was a system designed to ensure Just legislation. I take it to be the case that the Senate and by extension the government as a whole has become something of an aristocracy, to the point of producing such Families as the Kennedys and the Bushes. However, as the Senate is a relatively constant changing pool of power has it really undermined any attempt at truly representing the people or is it in fact a descriptive cross-section of political representation?
Karlie Knudtsen Critical Question #3: Short Critique of Pluralism
Theories of Constitutional Interpretation: Section I, seeks to “make a Pluralistic theory the best candidate for a general theory of constitutional interpretation” (151). Justice “Marshall [who pioneered a pluralist approach] and his contemporaries were familiar with a number of different sources of law besides the Constitution: the common law, the law of nations, civil law, and more specialized sources such as equity” (145). Thus, pluralist theories “converge around the following methods of interpretation: consulting the text of the Constitution, the intent of the Framers, precedent, inferences from the structure of the Constitution as a whole, and the national ethos or tradition” (148). In fact, all “pluralistic theories . . . recognize at least two legitimate methods of interpretation- text and precedent- in addition to the particular methods on which they lavish most of their attention” (151). Griffin’s advancements concerning pluralism seek to reconcile the many different sources of law and methods of interpretation to create a complete and consistent theory for understanding “the unique nature of the Constitution as a blend of law and politics” (145).
Attempting to reconcile all of the different sources of the law and methods of interpreting the laws arising there from poses a problem. Accepting pluralism as a general theory of interpretation and ipso facto excluding singular or neoteric methods or theories does not provide for circumstances where methods conflict. For example, the efflorescence of American and international societies creates norms, values, and ideals that might come into conflict with the original intentions of the framers of a constitution. How would standardized pluralism adjudicate in situations like that? Furthermore, given dynamic and rapidly developing legal, political, and moral understandings, adoption any specific form of interpretation, even pluralist, might stunt the forming of a better democracy or fail to consider new situations that are unaccounted for even in the enumerated pluralist methods. It also must be noted that pluralism was one of the first theories of interpretation, adopted by Justice Marshall and his peers, that was outmoded as new ideas and resources for understanding the Constitution, such as Madison’s Federal Convention notes, became available in favor of more modern or singular methods. Perhaps, there was a good reason for that which ought to be considered before jumping into an accepted theory of interpretation and threatening the development, justification, and further legalization of any constitution.]
Cassondra Taylor Critical Question #2
In McCulloch v. Maryland it is stated, “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Here it is being granted the government a limited ability to define it’s own powers; that although not enumerated if implied or legitimate it is a constitutionally granted power. It seems to me, however, that the last statement, “consist with letter and spirit of the constitution” is no longer a sufficient distinction for the assuming of powers and the exercise of various means. This now seems to be the point of contention in many respects. Must /can a means or power be both within the letter and within the spirit of the constitution? Although many powers can be within the spirit of the law, must they also be somehow within the letter of the law? If they are not enumerated are they still in some respects included/implied in the letter of the law? These seem to be the question now argued.