I hate to get all “scholarly” on a miserable rainy Friday. But there was a very interesting discussion a couple days ago on Sean Hannity’s radio program. A caller said that in his mind a good test for Harriet Miers, or any SCOTUS nominee, would be to ask them if they believed the Constitution is a “living document.”
My initial thought was, well of course it is! That is what I was taught throughout my public school education. The Constitution has a mechanism to be amended if enough Americans were moved to do so. In fact, we even have the capability to convene a Constitutional Convention to make changes. So I believe that it is in fact a “living document.” But this caller had another, very interesting interpretation.
He said that in his mind the phrase “living document” meant that judges could intepret the Constitution any way they want. That the words in it don’t mean anything except through the filtered eyes of lifetime-sitting judges. That thought had never struck me before. And it is most disturbing because many if not most of our Federal judges are elite academic types with their heads buried in case law and whose allegiances are with the American Bar, ACLU, and other liberal causes. There is a clear disconnect between the judicial branch and the people. So this caller is right, the Constitution has become a “living document” for the Federal judges, but no longer for “We, the People.”
And then he made a more important point in my mind. The Constitution is a “contract” between our Founding Fathers and “We, the People.” If you had a guy building your home based on a contract you both signed, would you want him to interpret the contract with his own “intent” halfway through construction of your house? Of course not. So why are we allowing our sacred Constitution to be altered based on the will of liberal special interests with undue influence on the Federal judiciary?
Our Federal judges are in “breach of contract” with the American people.
Our President’s duty to us is to reclaim this contract and appoint Federal judges and Supreme Court nominees who believe that as well.
I will be very interested to hear how Ms. Miers answers the question….. “Is the Constitution a ‘living document’?”
-Bruce (GayPatriot)
Well, first off, one should always remember that our Constitution was written in the fashion that Napoleon once described as the ideal for one — short and obscure.
In that context, the Constitution is meant to have some wiggle room for interpretation based on the felt need of the times. Because of that, though, case law and precedent is what fills in the details.
That being said, I agree with you that there is a ridiculous amount of interpretation taking place from the bench that is based more on ideology than it is on common sense and a reading of the document itself.
I’ve always been of the opinion that once the Constitution can mean whatever a judge wants it to, it no longer means anything at all.
Like what, in your humble opinion?
In fairness, I don’t think you have heard the other side of the argument. Actually I don’t think you are even willing to hear the other side of the arguement. Also, “conservative” judges like Scalia for instance, tend to reject a “Living Constitution” only when it’s convenient to them. Otherwise he’s all for it, no matter what he says when giving speeches. Hence his vote to over-ride California’s medical Marijuana law, which even Clarence Thomas dissented from.
If you haven’t been, you should be reading Ed Brayton’s Blog, “Dispatches from the Culture Wars” . He usually focuses on the “Creationism in the classroom” debate, but in today’s post he sums up the hypocrisy being practiced by the Right perfectly.
You can find Ed’s blog at the link below or through my site.
http://www.stcynic.com/blog/
OT: Zod for President
Whenit comes to interpretation, it seems the Constitution is like the Bible.
Personally, I like current, women and gay inclusive interpretations. Anglicans, the descendants of the writers of the Constitution, would be my first pick for the SCOTUS.
Like what, in your humble opinion?
The recent decision concerning eminent domain comes immediately to mind.
If you think that our forebears who had lived through the Quartering Act would have supported government action to seize property, outside of wartime, so that a local government can raise its tax revenues, you HAVE to be kidding. The Constitution is vague in a lot of cases, but it’s downright detailed and pissy when it comes to government seizure of property.
I, too, would support a narrower, more literal reading of the Constitution. This would allow for gay marriage under the equal protection clause and also would allow Bush to be impeached for launching a war against Iraq; only Congress has the power to declare war. Yes, our Congress voted to give Bush that power, but that act was itself clearly unconstitutional. A strict reading of the Constitution would also give grounds to prosecute this administration for condoning torture and other egregious abuses of the rights of due process. I say, bring it on.
I agree w NDT.
Further, if the constitution was actually a contract like that, not even John Hancock would have signed it.
The Constitution operates under the slogan “less is more”. It doesn’t even describe some rather basic terms.
“I am certainly not an advocate for frequent and untried changes
in laws and constitutions, I think moderate imperfections had
better be borne with; because, when once known, we accommodate
ourselves to them and find practical means of correcting their
ill effects. But I know, also, that laws and institutions must
go hand in hand with the progress of the human mind. As that
becomes more developed, more enlightened, as new discoveries are
made, new truths disclosed, and manners and opinions change with
the change of circumstances, institutions must advance also, and
keep pace with the times.”
–Thomas Jefferson to Samuel Kercheval, 1816.
Seriously GP, where have you been if this is the first time you have heard of the “living constitution.” Your interpretation of living as being amendable made me laugh, that isn’t living that is pretty much fixed unless changed.
The Warren Court took the concept of living to extremes and gave us much of the mindset we have today that includes society and moral vaues rather then the “contract” as it was written.
Search C-Span for some wonderful presentations by Scalia, they are wonderful well reasoned logical arguments that make your point far better then you or Hannity’s caller could (no offense, but he is like 100 steps ahead of you if this is seriously your first time hearing the modern meaning of a living constitution!)
DKK
Oh I forgot, as an example: Scalia points to ammendments in the past that were used to expand rights (sex, race) rather then judges interpretation of newly found rights.
The key is having the ability to convince people rather then force them. The same reason Roe was probably the worst SCOTUS decision ever, and as you have argued here why Gay Marriage as a court mandated issue is a mistake!
DKK
(PS- please excuse spelling and punctuation – my mental functions have been a bit hampered since my health declined)
What was it I heard, that the proposed EU “Constitution” was 150 pages long? Or was it 500 something? Huge anyhow. Ours is short, sweet, and subject to interpretation, yes. This is good. It gives us principles rather than particulars to work with and those really do adapt all the way from horse and buggy days to spaceplanes and genetic engineering.
There’s a tendency for people to think that somehow we’re so much smarter than people used to be, but about human nature that’s just not true. No, the men who wrote the constitution would never have stood for eminent domain to include seizing property to increase tax revenues. The intention for prefering the rights of property and privacy of individuals are inescapable. (Though the SC managed to escape it.) It could have been that some of the founding fathers understood, when it was written, that the principles of equality must apply to women and other races, and if that wasn’t *applied* at the time, the principle of equality is there. It *is* there, and it’s not in anyones interest to behave as though we can take and leave the parts of the Constitution we don’t like anymore, such as the 2nd ammendment. And it does us no good at all to warp *freedom* of religion to mean freedom *from* religion. (Does a cross offend an atheist? Am I allowed, as a Christian to be offended by a pagan symbol or, for that matter, displays of immorality? When did “freedom” come to mean that we aren’t allowed to offend each other? When did tolerance come to mean not having disagreements to be tolerant about?)
Somewhat at a tangent: I’m rather distressed at how so many people don’t see the point of the posse comitatus rules (spelling is wrong I’m sure) or understand the big-state/small-state issues that lead to the different make up of the Senate and House and now call for electing a president with a *popular* vote only. Or that the Court is not intended to uphold the laws passed but to act as a counterbalance to the power of the legislative branch, by judging if a law is constitutional… not that a law is fair or right or something they *like* but if it is constitutional.
We nee a privacy amendment. Short and sweet that a right to privacy exists. No more finding it itn the penumbra, no more false speculation. And again, the courts would be called to determine what it means and what limits it has. WOW, just like without an amendment.
Announcer: As a nation, we are in danger of forgetting our founding document the United States Constitution. A recent survey found that 49% of high school students don’t fully understand the first ammendment right to freedom of the press.
Student: First ammendment to what?
Announcer: Here at the NEA, we’ve come to the conclusion that we’ve dumbed down education just a little too much. To cover that, we’ve developed a new Constitutional study curriculum written in soothing blue ink. It teaches young people about the deeply flawed individuals who wrote our founding document, focuses their attention on the parts we agree with and shows them how our Constitution really works by letting them create their own school constitution providing teachable moments like this:
Johnny: Miss Smith. Billy keeps bullying me. I told him that our school constitution says that you can’t do that, but he said it was a living document.
Teacher: He’s right, Johnny. The United States Constitution changes all the time.
Johnny: But that’s not fair (sobs).
Announcer: To find out more about the new NEA Constitutional study curriculum, write us a letter or get somebody who has been homeschooled to do it for you.
HT: Rush Limbaugh Parody Archive
ThatGayCon,
Rush Limbaugh is already self-parody.
But I’m glad you like the advice of a narcotics addict.
What did Linbaugh say about them a while ago…?
When Libs say living constitution, just replace “Living” with maleable
#16
Can’t be more of a parody than you, Chumpler.
It’s interesting how liberals will laud those who have intentional recreational drug problems as heros for pretending to deal with the issue. However, liberals will criminalize any conservative for having a problem with highly addictive medication for severe pain. This further shows the sick bastard hypocrisy of the liberal left and ass clowns like you, Chumpler.
Sorry you can’t see the difference, dingleberry.
The Constitution is a social contract among Americans. In many societies, the contract is unwritten. Our Founding Fathers chose to make ours written so that it can be enforced as objectively and uniformly as possible.
The Constitution is thus a contract, a legal document, and like all other legal documents, says no more or less than what it states.
I find it very disturbing to think, and impossible to believe that all of the explicit and implicit values espoused in our Constitution are nothing more than passing fads. No . . . I refuse to accept that destructive leftist propaganda.
However, liberals will criminalize any conservative for having a problem with highly addictive medication for severe pain. This further shows the sick bastard hypocrisy of the liberal left and ass clowns like you, Chumpler.
Sorry you can’t see the difference, dingleberry.
=================================
Sorry, but Rush is hung on the petard of his own hypocrisy, not mine.
He is his own ass clown.
But thanks for using that old blame the poster not the subject of the post crap.
Ya’know it used to work, but we have learned, that those who live in a house of cards, should be very careful when they throw shit around.
H@@@
#21
Actually, it still works. You’re hung on the petard that the subject of your post is bullshit, dipshit.
#22
Nuh-ugh.
Yes, our Congress voted to give Bush that power, but that act was itself clearly unconstitutional.
It’s not clear to me, Andy. Please explain clearly and completely how that particular vote in Congress was unconstitutional, citing the particular article or articles of the Constitution that were violated.
I’m not sure what the point of this post is, but let’s get a few things–straight.
The constitution has always been a “living document.” Not even the “originals” stuck to it. The Alien & Sedition acts of 1787 obviously violated the 1st amendment. The Louisiana Purchase of 1803 was not authorized by the constitution. I could go on.
The WWI cases of US vs. Schenck and US vs. Frohwerk are only more evidence of the fact. What are you complaining about? Cite specific cases.
The idea, and terminology, for ‘living Constitution’ come from the idea of English as a ‘living language’ – that is, one that changes with time (unlike say Latin, or French – one of which is officially dead, the other entombed alive). The meaning and scope of common words change constantly from careless or creative use. Sometimes the changes stick – the word Gay skips to mind.
It is certainly true that the definitions of many common words given by the Founding Fathers would be radically different from those presented by modern writers. And it’s an interesting exercise to try and guess the meaning of 18th century writing – and it is just a guess. It’s very difficult to put ourselves into the state of mind of an 18th century writer (even one as brilliant and as prolific as Jefferson where we have thousands of pages of careful writing from which to extract a context). This is why the real ‘living constitution’ arguements are largely acedemic and scholarly exercises.
first of all, can we keep the dailykos name calling on the trashy-bashing sites where they belong? i like this blog because it’s civil, not because we’re calling people ass clowns and dingleberries.
raj and patrick and markp (#4, 10, and #25), don’t expect answers to your points here, because they certainly point out a broad hypocrisy here that really can’t be argued by the usual suspects/rightist apologists (sean hannity? come on bruce, do your own homework rather than paying attention to loudmouth intellectual half-pints). to that you can add the meme that roberts religion should not be a matter, but today the far right is selling harriet miers BECAUSE of her religion.
the ‘living’ constitution… ‘judicial activism’… create whatever bogeyman you want.
the truth is that it is simply the political hacks and ideologues (today it’s on the right) who are covering up the increasingly clear and unvarnished truth about their agenda: the real definition of these laws are only “laws we don’t like”. you need look no further than the recent SCOTUS decision overruling state wine delivery rules, championed (and in my opinion correctly) by the right. yeah, it’s all about state’s rights, until we can’t get our cabernet delivered to our doors. then, let’s call the supreme court.
it’s all about agendas and convenience. then watch those ‘strict constructionist’ principles slip quietly out the door unnoticed by hacks like sean hannity (and, sadly, bruce).
It is laid out VERY clearly in the Constitution, in_the_middle, that the Federal government has the power to regulate interstate commerce. You don’t have to look very hard to find it, either — Sections 8, 9, and 10 of Article I lay out in great detail what Congress and the states can and can’t do in respect to trade.
Now, go find where it is laid out as specifically that people have the right to murder another person because that person interrupts their social life or came about as a consequence of their informed and consented-to actions. Better yet, go read the part of the Constitution that talks about seizure of property and see what you think it says about confiscating private property for the sole purpose of increasing local tax revenue.
“Strict constructionist”, in the eyes of the left, apparently means anyone who READS the Constitution before ruling on it.
“No legislative act contrary to the Constitution can be valid. To deny this would be to affirm that the deputy (agent) is greater than his principal; that the servant is above the master; that the representatives of the people are superior to the people; that men, acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. It is not to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. A Constitution is, in fact, and must be regarded by judges as fundamental law. If there should happen to be a irreconcilable variance between the two, the Constitution is to be preferred to the statute.”
Alexander Hamilton QUOTE
#27 – For the record, I haven’t decided my view of Ms. Miers’ nomination and will wait for the confirmation hearings.
#30
You have the support of the president as the manifest on the front of this blog, you have quoted it time and time again, and now YOU HAVEN’T DECIDED?
I felt a beeeze from THAT waffling.
When it comes to Harriet, Don’t Mess With Texas!
This is too much fun.
North Dallas Thirty — October 10, 2005 @ 1:51 pm – October 10, 2005
Now, tell me, what in the federal constitution gave the Congress the power to pass the Alien & Sedition acts. Or the power to engage in the Louisiana purchase. Cite me chapter & verse.
I can cite you chapter & verse of judicial review (see Federalist Paper #78). Cite me the powers in the A&S acts and the Louisiana Purchase. You won’t be able to.
The originals largely ignored original intent.
>
* W * R * O * N * G * !!!!
The Constitution is a compact among OURSELVES–among We, the Living.
Furthermore the Founding Fathers were part of “We, the People.”
To say it is a “contract between the FFs” is to stifle the Constitution. One of its glories is its flexibility. That such a document has stood for over two centuries with relatively few amendments (10 added at once upon its adoption, 2 cancelling each other), only two of these amendments revoking stipulations of the original (abolishing slavery and imposing an income tax) is proof of this adaptability.
If the age of a nation is determined by its political institutions and governmental structure, only Great Britain is older than the USA.
The originals largely ignored original intent.
Or, most likely, understood it themselves.
North Dallas Thirty — October 14, 2005 @ 1:24 am –
You aren’t seriously going to suggest that the Alien & Sedition acts (1798) weren’t a violation of the text of the 1st amendment, are you? Irrespective of that, what provision in Article I gave the Congress to pass them? Moreover, what provision in Article I gave the Congress to engage in the Louisiana Purchase?
The point should be obvious: the purported Founding Fathers did not adhere to the text of the Constitution.
From #1: “That being said, I agree with you that there is a ridiculous amount of interpretation taking place from the bench that is based more on ideology than it is on common sense and a reading of the document itself.”
Excuse me, but the Founding Fathers had NO clue the length and breadth of the amount, depth and scope of Congressional lawmaking that winds up having to be interpreted.
I think it’s assinine to blame judges for having to intrepret the literally thousands and thousands of moronic laws adopted by Congress over the last 228 years … for their constitutionality and applicability. That’s not the judiciary’s fault, but Congress’s fault (i.e. OUR fault!).
Is there legislating from the bench? Of course, but not nearly to the degree you would imagine. In fact, most court cases go unnoticed because the issues involved are the equivalent of dealing with barking dogs and trash collection. BORING! It’s only a few high profile issues that draw the attention, and the Founding Fathers had NO say on abortion, homosexuality, etc.
I think that the rock throwing at the judiciary needs to stop until we get Congress’s law printing machine under control first.
I quote for all your griping, Raj:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.