Constitution: Static or Living and in it means??


by ThinkToday
Tags: constitution, living, means, static
ThinkToday
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Mar16-12, 10:46 AM
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I was reading "The Original Constitution", by Robert G. Natelson. The work assesses Constitution and Bill of Rights in light of eighteenth-century law, minutes from the Confederation Congress, the original Articles of Confederation, Federalist papers (FWIW, the Federalists were those supporting the ratification of the Constitution), the Anti-Federalists, the legislative discussions with North Carolina, New York, Rhode Island, etc., that were holding out on ratification, personal papers of those that were there and engaged in the process. I find the representations made to the respective legislatures regarding the meaning attributed to sections of the Constitution by Founders very interesting. Especially, since the ratification by each legislature was in great part due to these representations.

I have a ways to go in the book, but it appears the Constitution and Bill or Rights that were ratified differ from where we are now with their meaning. So, I’d like to look at this a few of different ways. 1) Quotes and citations of period work the author missed that would lend a different view or meaning. 2) The Constitution has a mechanism for allowing change, so does a court have the power to expand that meaning beyond the original intent? 3) The separation of powers vests the three branches with distinct powers, so can one branch usurp the powers of the others?

With respect to number 2 and 3, I would argue no. The courts were intended to interpret law and not make it. The courts are bound to interpreting the law’s meaning based on the Record. By definition, only the legislature legislates and only they can create or change “law”. The Executive can only agree (approve) or reject (veto) a law. The Executive is bound to enforce with equal vigor the laws it likes and dislikes.

This brings me to my main interest. Are the Constitution and Bill of Rights living documents? Can the Supreme Court change the meaning of the Constitution and Bill of Rights to make it PC or fit into the modern world? Given the Courts are not specified in the Constitution as a mechanism or branch that can amend either document, I find it unlikely the founders would have intended and hand full of life long appointed persons to have the ability to amend either document by “interpretation”.

I’ll close with a life experience: In the 70s, I can remember my oldest brother arguing with my dad about a bar exam question. The gist of it was my brother argued "something" wasn't right, as in justice. My dad, who had been an attorney for decades, said something like: "The law is what it is. The law is a set of rules for resolving disputes. Only with a firm understanding and agreement on the rules (laws) can people go into a courtroom and know where they stand. If the law says the moon is made of green cheese, you argue fervently its green cheese. If you want to argue the moon is rocks and dirt, run for the legislature to change the law." To put it another way, in an ideal world, the judge and jury could be of any political, ethnic, social, etc. persuasion and it should have no disparate impact on the application of the law. There is a place to change law and it's called the legislature.
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SixNein
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Mar16-12, 11:37 AM
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This brings me to my main interest. Are the Constitution and Bill of Rights living documents? Can the Supreme Court change the meaning of the Constitution and Bill of Rights to make it PC or fit into the modern world? Given the Courts are not specified in the Constitution as a mechanism or branch that can amend either document, I find it unlikely the founders would have intended and hand full of life long appointed persons to have the ability to amend either document by “interpretation”.
Yes it is a living document. The Supreme Court's job is to interpret the constitution and laws in general. For example, what does General Welfare mean?
ThinkToday
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Mar16-12, 12:19 PM
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Quote Quote by SixNein View Post
Yes it is a living document. The Supreme Court's job is to interpret the constitution and laws in general. For example, what does General Welfare mean?
Interpretation is something courts do, but against what standard? Is the "interpretation" based on anything other than the whim of a court? IMO, the interpretation must be based on the understanding of the intent of law when it was past. Hence, living document... no. The interpretation cannot be on an arbitrary floating point. The law must have an anchor.

See linked article. http://www.nationalreview.com/articl...cy-joel-alicea for the following:
Thomas Jefferson called the idea of judicial supremacy “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” It was Lincoln who, delivering his first inaugural address under the cloud of Dred Scott, warned that if the meaning of the Constitution was “irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Surely, you wouldn't argue Jefferson didn't know what he meant as it was written.

Astronuc
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Mar16-12, 12:37 PM
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Constitution: Static or Living and in it means??


Quote Quote by ThinkToday View Post
Interpretation is something courts do, but against what standard? Is the "interpretation" based on anything other than the whim of a court? IMO, the interpretation must be based on the understanding of the intent of law when it was past. Hence, living document... no. The interpretation cannot be on an arbitrary floating point. The law must have an anchor.
or the whims of a body of legislators, or political party, or executive and his/her coterie.

The preamble indicates the purpose of the Constitution - basically the document establishes a structure of government, and places certain authorities in an Executive, Legislative and Judicial branches, and reserves certain privileges to the states and people.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
http://www.archives.gov/exhibits/cha...ranscript.html
ThinkToday
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Mar16-12, 12:54 PM
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Quote Quote by Astronuc View Post
or the whims of a body of legislators, or political party, or executive and his/her coterie.
Somewhat, but not entirely. Legislators can be replaced every couple years, and political parties rise and fall quickly enough. As for the executive, they are taken to court by States, citizens, organizations, etc. when they don't uphold the law. The Supreme Court, has become unaccountable. The voting margins on the Court make it virtually unthinkable that politicians would allow a "friendly vote" on the Court to be removed. IMO, we have what Jefferson was so concerned about.

But, back to the base question. Can the Court, by judicial determination, change the Constitution such that it doesn't reflect the agreed upon intent during ratification? Can the Court, by judicial determination, change the meaning of a law such that it doesn't reflect the agreed upon intent during passage? If so, why do we have legislators if ultimately the Court will rewrite a law to say what it thinks it should say? What good would amending the Constitution via Congress or future Convention do, if the Courts could alter anything passed?
russ_watters
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Mar16-12, 01:01 PM
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I think the OP is improperly framed, yet correctly answered: static and living should refer to whether the document can change, not whether interpretations can change.

Logically, it is pretty silly to have a document that can mean whatever we feel like having it mean. My opinion is that re-interpretation is just a sneaky way to avoid the difficult process of making an amendment.
SixNein
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Mar16-12, 01:05 PM
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Quote Quote by ThinkToday View Post
Interpretation is something courts do, but against what standard? Is the "interpretation" based on anything other than the whim of a court? IMO, the interpretation must be based on the understanding of the intent of law when it was past. Hence, living document... no. The interpretation cannot be on an arbitrary floating point. The law must have an anchor.

See linked article. http://www.nationalreview.com/articl...cy-joel-alicea for the following:
Thomas Jefferson called the idea of judicial supremacy “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” It was Lincoln who, delivering his first inaugural address under the cloud of Dred Scott, warned that if the meaning of the Constitution was “irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Surely, you wouldn't argue Jefferson didn't know what he meant as it was written.
We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.

Gingrich's proposition would be the end of separation of powers.
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Mar16-12, 02:51 PM
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Quote Quote by SixNein View Post
We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.

Gingrich's proposition would be the end of separation of powers.
“We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.” – There is a legalism known as stari decisis, “Latin: to stand by that which is decided.” The principal that the precedent setting decisions are to be followed by other lower courts. In that respect, courts do look to past cases, but stari decisis is not absolute. Nor does it state the meaning is in flux. A Stari decisi argues the opposite by pressing the need to have settled decisions. I would argue that a stari decisi demands a reverence not just for settled decisions but for the intent of the law and Constitution, as written.

The fifth five men that were the Framers were largely lawyers and formerly English citizens. I’ve not found any period reference that set the Constitution and Bill of Rights in anything other than rigid intent. Look to the ratification arguments that held specific meaning to achieve legislative approval. The copy of the reference book is in my Kindle, so I can't link the citation, so I'll retype it. "Forrest McDonald, perhaps America's leading constitutional historian, has observed that, "The main body of the Constitution, more than two-thirds of it, address the task of making government act in accordance with law." Further citing the work, "Thus, the Constitution denied officeholders the power to alter it as they could alter other law." Further quoting the work, "Elbridge Gerry - former federal convention delegate and later Vice President- explained to his colleagues in the First Congress: 'The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the constitution different from the original instrument.’" I think it follows logically that that same strict construction argument that was considered binding on Congress would be equally binding on the Court. Keep in mind people like Gerry were the same people that went to their respective legislatures to explain the meaning of various aspects of the Constitution in the effort to obtain ratification of the Constitution. Thus, it would be hard to argue they lacked understanding of what was intended and agreed upon.

I've never seen anything in Gingrich's published works to indicate he'd break the separation of powers, unless you are referring to having the Justices explain themselves. In that regard, keep in mind the following: 1) The executive branch is held accountable to congress and must respond to congressional demands for most of the operation aspects of government. 2) The judicial branch must respond to Congress for its financial operations, court expansions, judicial appointments, etc. 3) The executive branch has been taken before the Supreme Court many times to challenge Executive actions. I find it ironic the Court would be so offended at being held accountable for its decisions when it so readily holds the Executive and Legislative Branches to account. Do you remember the time Congress (partly controlled by Republicans) granted the line item veto to President Clinton, only to have the Supreme Court step into the fray and tell Congress what it can and can't do with it's own powers?
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Mar16-12, 03:48 PM
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Quote Quote by ThinkToday View Post
“We use the British standard of precedent. New questions arise... things are decided... and future cases look on past cases.” – There is a legalism known as stari decisis, “Latin: to stand by that which is decided.” The principal that the precedent setting decisions are to be followed by other lower courts. In that respect, courts do look to past cases, but stari decisis is not absolute. Nor does it state the meaning is in flux. A Stari decisi argues the opposite by pressing the need to have settled decisions. I would argue that a stari decisi demands a reverence not just for settled decisions but for the intent of the law and Constitution, as written.
Meaning is often decided through precedent. Precedent allows some degree of consistency to develop in law. But yes, precedent is not absolute. If precedent was absolute, erroneous decision made in the past would be set in stone. The court always has the option of diverging from precedent if it has good reasons. But in many cases, it will be reviewed by higher courts to check if the reason was indeed good enough.

The fifth five men that were the Framers were largely lawyers and formerly English citizens. I’ve not found any period reference that set the Constitution and Bill of Rights in anything other than rigid intent. Look to the ratification arguments that held specific meaning to achieve legislative approval. The copy of the reference book is in my Kindle, so I can't link the citation, so I'll retype it. "Forrest McDonald, perhaps America's leading constitutional historian, has observed that, "The main body of the Constitution, more than two-thirds of it, address the task of making government act in accordance with law." Further citing the work, "Thus, the Constitution denied officeholders the power to alter it as they could alter other law." Further quoting the work, "Elbridge Gerry - former federal convention delegate and later Vice President- explained to his colleagues in the First Congress: 'The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the constitution different from the original instrument.’" I think it follows logically that that same strict construction argument that was considered binding on Congress would be equally binding on the Court. Keep in mind people like Gerry were the same people that went to their respective legislatures to explain the meaning of various aspects of the Constitution in the effort to obtain ratification of the Constitution. Thus, it would be hard to argue they lacked understanding of what was intended and agreed upon.
The court's basic job is to be the authority on the constitution and law in general. If the legislation was the authority, they could ignore all restrictions placed upon them, and the constitution would become a mere suggestion. The same is true for the executive branch should you grant it authority. And the job of the court was agreed upon in the constitutional convention: (All but 2 members said no).

(You may have to log into your school to read this:)
http://www.jstor.org/discover/10.230...id=55903079943

http://www.jstor.org/discover/10.230...id=55903184763

I've never seen anything in Gingrich's published works to indicate he'd break the separation of powers, unless you are referring to having the Justices explain themselves. In that regard, keep in mind the following: 1) The executive branch is held accountable to congress and must respond to congressional demands for most of the operation aspects of government. 2) The judicial branch must respond to Congress for its financial operations, court expansions, judicial appointments, etc. 3) The executive branch has been taken before the Supreme Court many times to challenge Executive actions. I find it ironic the Court would be so offended at being held accountable for its decisions when it so readily holds the Executive and Legislative Branches to account. Do you remember the time Congress (partly controlled by Republicans) granted the line item veto to President Clinton, only to have the Supreme Court step into the fray and tell Congress what it can and can't do with it's own powers?
When one branch declare it will ignore the courts, it is a violation of separation of powers:

From your link:
Mr. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning — he would even ignore a Court decision if he strongly believed that the Court’s judgment on an important issue was contrary to the true meaning of the Constitution.
Gingrich would be able to decide his own constitutionally imposed limitations of power.

Congress does not have absolute power. It has limitations imposed upon it by the constitution. If congress oversteps its limitations, the supreme court has the ability to say no. Congress does have the option of amendment to the constitution. If it creates such an amendment, the courts are obligated to oblige.
Jimmy Snyder
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Mar16-12, 04:52 PM
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When the Supreme Court decides that a particular law is unconstitutional, isn't that an example of the judicial branch usurping the power of the legislative branch?
mege
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Mar16-12, 05:11 PM
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Quote Quote by russ_watters View Post
Logically, it is pretty silly to have a document that can mean whatever we feel like having it mean. My opinion is that re-interpretation is just a sneaky way to avoid the difficult process of making an amendment.
This.

Quote Quote by Jimmy Snyder View Post
When the Supreme Court decides that a particular law is unconstitutional, isn't that an example of the judicial branch usurping the power of the legislative branch?
Except they have the power to do so. IMO the implication of your statement is like calling the incarceration of murderers tyranny. Technically, yes - but there exists a social contract (for lack of a better term) that allows a government (or in your comment's case - the SCOTUS) to do so.
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Mar16-12, 05:15 PM
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Quote Quote by mege View Post
Except they have the power to do so.
Who gave them that power?
Vanadium 50
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Mar16-12, 05:44 PM
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Quote Quote by Jimmy Snyder View Post
Who gave them that power?
Articles III and IV of the Constitution. (You can read the thinking behind this in Federalist 78 and 80) The check and balance here is that while the Supreme Court has this power, they have no ability to enforce, only persuade.
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Mar16-12, 05:55 PM
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I'm not sure what Gingrich's proposal will actually do, in that unlike the other branches, the Supreme Court actually issues explanations of why they decided what they decided - called "opinions". These are carefully crafted because they establish precedent. Having this occur in two places, one of which involves extemporaneous speech seems to me to be a recipe for making a mess. Especially as Mr. Gingrich already gets what he is nominally asking for - an explanation.

As far as the argument against strict constructionalism, the classic example is "what happens when Congress passes an unjust law? Is there no recourse?" (And its twin "what happens when Congress passes an unjust law favored by the majority?")
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Mar16-12, 06:05 PM
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Quote Quote by Vanadium 50 View Post
Articles III and IV of the Constitution. (You can read the thinking behind this in Federalist 78 and 80) The check and balance here is that while the Supreme Court has this power, they have no ability to enforce, only persuade.
This is the answer to question 3 in the OP.
SixNein
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Mar17-12, 02:38 AM
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Quote Quote by Jimmy Snyder View Post
When the Supreme Court decides that a particular law is unconstitutional, isn't that an example of the judicial branch usurping the power of the legislative branch?
If congress decides to pass a bill to regulate all speech tomorrow...... it would bump up against limitations imposed by the 1st amendment. The court is who decides these things.

On the other hand, congress has the power to amend the constitution. So If congress really really wants to do something, it can.
SixNein
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Mar17-12, 02:48 AM
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Quote Quote by Vanadium 50 View Post
I'm not sure what Gingrich's proposal will actually do, in that unlike the other branches, the Supreme Court actually issues explanations of why they decided what they decided - called "opinions". These are carefully crafted because they establish precedent. Having this occur in two places, one of which involves extemporaneous speech seems to me to be a recipe for making a mess. Especially as Mr. Gingrich already gets what he is nominally asking for - an explanation.

As far as the argument against strict constructionalism, the classic example is "what happens when Congress passes an unjust law? Is there no recourse?" (And its twin "what happens when Congress passes an unjust law favored by the majority?")
I think it would be downright dangerous for the executive branch to be some kind of authority on what is constitutional. They would be enforcing and judging. So if they violate your rights, they can declare it ok.

You would simply have a Nixon establishment: Above the law.
mege
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Mar17-12, 04:26 AM
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Quote Quote by SixNein View Post
I think it would be downright dangerous for the executive branch to be some kind of authority on what is constitutional. They would be enforcing and judging. So if they violate your rights, they can declare it ok.

You would simply have a Nixon establishment: Above the law.
Just a reminder: President Obama has used his powers to declare laws unconstitutional and stop enforcement (the Justice department is under the Executive branch)

Is his approach an appropriate use of executive power in the context?


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