Tea Parties Spread across Nation

I don't even think it is worth wasting time discussing the Supremes. The conservative Supremes, the majority, have shown time and time again they could care less about what the Consitution does or does not say. There mission is to drive the partys political ambitions are allow the country to be raped by corruption...eg election of George II in 2000.

 

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The problem is more complicated than that. The man who wriote it may have one intent, that he keeps secret. The men who read it and pass it into law many have several other reading not intended by the author, and also not expressly shared in great detail. Just as different judges can read the text of a law and decide that it means different things, so can different legislators.

The psychological studies are clear that a "committee" can almost never be said to have a single unified "intent" and the English language is not well designed for crystal clarity to the maximum extent it could be.

Indeed, there is a risk that the people who are most likely to be vocal in their interpretations of a text, and whose interpretations would be known to us as a result, would be the people with extreme readings. If you are confident that everyone agrees with you, there is no need to shout your position from the rooftops. It's the radicals at the fringes that tend to make the most noise. (This is a major issue with those who trumpet the Radical Republican's views on the 14th Amendment...there is no reason to believe that the majority of Congress agreed with their radical stance on racial equality, the broad incorporation of the Bill of Rights under "privileges or immunities" clause, their embrace of affirmative action, etc.)

That's why some people who are key to the doctrine of originalism (like Robert Bork and Scalia) have passed beyond the "original intent" of the legislators and champion instead "original meaning", that is the view that a reasonable, learned man from the time of the laws passage would have had of the text. James Madison, who kept the most extensive notes during the original Constitutional Convention, was also wary of publishing those notes, in case they might be used by some as a guide to interpreting the text, which he thought improper. He wanted the notes to be published only after his death "or, at least, . . . till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account . . . . As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character."

There is something to be said for Bork's position, but it can also be said that he introduces a completely fictional point of view for one that merely impossible to determine accurately: the entirely hypothetical reasonable man from the past versus the unstated consensus view of the legislators of that time.

Not to mention that there are historical issues. Judicial review was clearly not in the minds of the framers, but we have it and its firmly entrenched. The question of who gets the "final" word on what the constitution means was simply not well thought out. Prior to the U.S. Constitution, a constitution was thought of as a political issue, not a legal one. While there are legal elements introduced in written constitutions, it seems likely that the framers never really considered the question of who had the final say on interpreting it (which is why there was a real risk of a showdown following Worcester v. Georgia between the Marshall Court and President Jackson).

Even Madison, Father of the Constitution, as noted wrote about settling the meaning of the constitution by practice and stated that the debates have no authority in helping determine its meaning. He indeed opposed the Bank of the United States as unconstitutional, and then later accepted it when he was President on the grounds that, whatever he thought about the Bank himself, te country had accepted it. Practice had settled the matter and made it constitutional. Settling the Constitution's meaning by practice and abandoning your objections when the country comes behind a given interpretation, as he did with the Bank, is very much in the mold of the "Living Constitution."

But...in the Father of the Constitution believed in the Living Constitution approach, then how can some be both an originalist and reject his original understanding of constitutional interpretation? That is another problem the "original meaning" view sidesteps. You can ignore what Madison thought about the issue if his view does not comport with your view of that the "reasonable man" would have said. Though, that does mean deciding that the Father of the Constitution was himself unreasonable.

I personally feel that Scalia's and Bork's "reasonable man" happens to draw the conclusions they find most appealing in most cases, rather than finding them at odds with this hypothetical man's decisions. I think the reasonable man of his age standard is a little too malleable to relied upon as a solid guide to interpretation and what we actually get is a tension between pure textualism, some originalism and a lot of Living Constitutionalism (often under the guise of other theories). That is probably the best way to go. It leaves the document free to evolve to meet new challenges, yet not entirely without roots.

 

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I don't even think it is worth wasting time discussing the Supreme's. The Liberal Supreme's, when in the majority, and the minority, have shown time and time again they could care less about what the Constitution does or does not say.

Their mission is to drive the Democratic party's political ambitions and allow the country to be raped by political corruption, cronyism, and make law from the Bench rather than by the legal process of legislation in congress.

 

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Just look at what the supremes have brought us under Republican direction...corruption, cronyism (hunting buddies), make law from the bench...(law which they do not want repeated because its legal foundation is so weak and contrary to all existing law, giving the election to George II). We never saw this kind of corruption under a Democratic controlled supreme court.

I used to have respect for the highest court in the land, not any more.

 

Mod Note: Buff, and I will ask you to actually answer the questions without bold print, it's annoying and unnecessary. If you want your posts read, then I suggest: making them shorter and containing links to sites. No need to constantly post miles of quotes.

The supreme court has already held that the more recently adopted amendment holds legal authority over the older ones (If you notice, I also said that some of this is arguable from a legal standpoint). If this weren't true, then the purpose of adopting an amendment would be moot. The XVI amendment gives the Congress the power to tax any way it wants. Do you deny this, if not, then what do you think it was intended? What was the purpose of the XVI amendment?

Again, linearly speaking, the more recent the amendment, the more power it holds because an amendment is intended to alter the older portions of the Constitution. That's why they were adopted. They all can't be equal otherwise the amendment banning alcohol would still be in effect while the one legalizing it would also be in effect. You can't have legal paradoxes like that.

~String

 

It will interesting to see if the supremes protect the republicans in the senate by not allowing Al Frankin (elected Democrat)to take his seat in the Senate. Everyone thought that the bush challenge had no merrit...cause it did not. But that did not stop the supremes from stepping in and giving the election to George II.

 

Interesting. i was not aware of the "original meaning" theory.

Regarding the bank issue, Madison was simply being practical. Once an issue has been settled, reversing course will cause a lot of problems. So, unless the way the issue was settled previously represents some great injustice, it's probably best to respect precedent. This is perfectly reasonable, IMO.

To me, the whole "living constitution" idea sounds like a cover for "the constitution means whatever we (meaning the government) says it means". Which is tantamont to not even having a written constitution. Consider the second amendment. It clearly states that "the right of the people to keep and bear arms shall not be infringed". Yet, until recently, no one was sure if we really had such a right. This seems absurd.

 

The Constitution does mean whatever we say it means, as a matter of practice.

The issue is simply one of how we keep track of "what we say it means." On the one hand, the Constitution contains the means to totally alter its contents, in a way that even the strictest originalist would have to accept - i.e., amendment. Nevertheless, even the most carefully worded law will inevitably encounter areas in which its meaning is unclear, and so must be interpretted, and this is one of the reasons the Constitution lays out a court system with such powers.

Rather, the issue is whether a living Constitution is a cover for judges and Justices to inject their own personal views, rather than actual views of The People - be they evolving or simply unconsidered at the time of legislation. That the Constitution should, one way or another, end up reflecting the prevailing views of society - which are subject to change - is in itself uncontroversial. It's just a question of how it should be accomplished.

Only wild-eyed kooks revere the Founding Fathers to the point of religious infallibility: the Founding Fathers themselves harbored no such pretensions. Certain famous ones didn't even expect the Constitution to last more than a handful of generations, and would consider originalism, in our present day and age, ludicrous. In practice, the overwhelming majority of people one hears advocting originalism or strict constructionism or whatever are not truly committed to these approaches, but simply favor them as principled-sounding arguments against specific rulings that they object to. Much like limited-government rhetoric, these principles fly out the window the moment they become inconvenient.

Meanwhile, judicial "activism" is by no means the most clear and present danger to the entrenchment of constitutional protections in the US. Rather, that would be the recent practice of certain states - including California - of allowing their constitutions to be amended by a simple majority in a referendum. I.e., literal tyrrany of the majority. This method was recently used to strip an entire class of people of a right, based on their private lifestyle choices.

 

Judicial activism, flexibility, and reality

The most part of judicial activism has favored what we might consider conservative causes. One of the most famous examples is the idea of corporate personhood. This doctrine, which includes corporations under a broad range of equal protection considerations, was never part of any written decision handed down by the Court. Rather, it stems from a note included by a court reporter.

One of the most mentioned assertions of liberalized judicial activism comes up whenever the Court draws new equal protection conclusions. Loving v. Virginia, for instance, which struck down anti-miscegenation laws, or recent state court decisions pertaining to equal protection and homosexuals.

In these cases, what happens is fairly obvious. In Loving, the arguments are fairly clear. The decision is fairly clear. The state's position was simply untenable under the Fourteenth Amendment to the United States Constitution. In state decisions about homosexuality, what has changed is the presupposition. More and more convincingly, scientific evidence explains that homosexuality is a born trait; with the talk of chosen lifestyles essentially put to rest, the equal protection clauses in those states' constitutions pretty much point to one result.

The United States Constitution is deliberately broad specifically to allow for its flexibility. As we learn, our understandings change. This is why target-specific amendments like a pro-life, marriage, or flag burning are bad ideas. They are inappropriately deliberate and focused; strangely, the partisans who complain about sprawling government tend to want to make the laws and Constitution more specific and complicated.

The idea of a living constitution is inevitable in such circumstances. It reinforces justice by allowing government and society alike to evolve. Consider Roper v. Simmons, in which one of the Court's deciding factors pertained to the ways in which juvenile brains operate. Our understanding of how juveniles make decisions has changed dramatically in recent years, and the decision respects that observation. Whether or not one agrees with the outcome, it is the flexibility of the Constitution that allows us to incorporate new knowledge and understanding into our laws.

And remember that big government didn't come about arbitrarily. There are plenty of regulations that "hold back" businesses that were put into place specifically because of company abuses. There are plenty of local intrusions against our liberty that come about because people have consistently shown that it's necessary. DUI laws? Well, yeah, they're invasive. And as one who has endured prosecution and dealmaking under these statutes, I welcome them. I don't like the drug war, but it's hard to argue for wholesale legalization in consideration of what cocaine and heroin have done to society. That's a tough case to build.

The purpose of the United States Constitution is spelled out in the Preamble. Many of the intrusions people complain about came about with arguable justification. Were these the right solutions? Quite obviously, not all of them can, and given the fact of government itself, most anything it does suffers some kind of significant problem.

The government is not empowered to allow us to dissolve in a sea of our own decadence. The Republic is not allowed to self-destruct. And that's actually a bit of a stroke of genius. Doesn't mean we can count on government for perfect solutions, but as I've learned from so many of my conservative neighbors over the years, if you don't want the government on your back, don't give them a reason.
____________________

Notes:

Warren, C. J. Earl. "Opinion of the Court". Loving v. Virginia (388 US 1). June 12, 1967. Legal Information Institute at Cornell University Law School. Accessed April 28, 2009. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html

Kennedy, J. Anthony. "Opinion of the Court". Roper v. Simmons (543 US 551). March 1, 2005. Legal Information Institute at Cornell Universeity Law School. Accessed April 28, 2009. http://www.law.cornell.edu/supct/html/03-633.ZO.html

See Also:

Nace, Ted. Gangs of America: The Rise of Corporate Power and the Disabling of Democracy. San Francisco: Berrett-Koehler, 2005.

 

Exactly.

I favor this approach to any law. New laws should be made via the democratic process, not by judicial fiat. Of course there's always room for some interpretation as you said and that's all well and good. But any major change (such as givng women the vote, or freeing the slaves, etc) should be made by the legislature.

If the constitution means only what "we" say it means (as you suggested); what better way to assess how we feel than a referendum? In for a penny, in for a pound. If you support a "living constitution", you support the idea that all rights are only one referendum or one judicial ruling from disappearing.

Personally, I believe it should require a constitutional amendment to alter the basic rights spelled out in the constitution. Amending the constitution is a difficult process, so our rights are much safer under my approach. But under a "livnig constitution", everything's up for grabs.

 

Judicial appointment and ruling (not "fiat") are parts of the democratic process. And like all parts of our democratic process, there are checks and balances on it.

That said, the issue is not "new laws." Nobody besides the legislature can make those to begin with. Rather, the issue is figuring out what the heck our existing laws actually add up to, in practice.

It's not the use of referendums per se that is problematic, but the low bar that is set of a simple majority. We would never allow the constitution to be amended by a simple majority in the legislature, but somehow we allow the electorate - which is proportionally represented in said legislature - to do exactly that.

If, say, 85% of people vote for an amendment in a referendum, it's probably okay. But the reality of popular politics is that referenda rarely pass by more than a small margin, and this makes it a problematic way to amend the constitution, which is supposed to contain bedrock principles that are widely accepted. And then there's the quality of the public debate that accompanies these referenda: it's really bad, for a variety of reasons, and these are the same reasons that we use a republican system of government - instead of direct democracy - in the first place.

Not at all. That a constitution lives does not mean that it is subject to any whim whatsoever. I am here decrying the ridiculously low bar for amendment via referendum in California, after all. Anyone who accepts that the constitution can be legitimately amended - by whatever means - supports a living constitution. And that, by definition, includes strict constructionists and originalists, since the original constitution was clearly designed to be amended.

It takes a constitutional amendment to alter anything in the constitution. That's what a constitutional amendment is. The issue the courts deal with is figuring out what all that stuff in the Constitution actually adds up to, when conflicts arise. I.e., outside of certain instances of misconduct, what the courts do is not alter rights, but figure out what they were to begin with.

A process that, you'll note, I am complaining is not difficult enough, at least when it comes to certain states. It's a matter of pumping up big out-of-state churches to fund scare campaigns on TV, in California. The legislature doesn't have any say at all in the process, when it's inconvenient for well-funded people who want to pass amendments.

What you don't seem to get here is that you support a living constitution - your objection only relates to the specific role that the courts play in keeping it alive. The only constitution that isn't "living" is one that can't be amended. If you can amend it, it's alive.

Everything has always been up for grabs, it's simply a question of how easy it is for which parties to grab it. You do yourself no favors by using "living Constitution" as a scare word, when what you are concerned with is only judicial activism. People who advocate a living Constitution aren't then advocates for judicial activism, or otherwise making it easier to change the Constitution. They're simply informed about how such things actually function, and have too much integrity to portray their dislike of certain judicial outcomes as some kind of principled originalism.

 

I don't disagree with your interpretation of the second amendment, but I'd not that if that is all the amendment said, I doubt there would ever have been any debate over the scope of the right, even amongst the living constitution proponents (other than the scope of what does and does not constitute "arms" for purposes of federal automatic weapons bans and the like). It's the "militia" language that gave people who dislike guns a reasonable foothold in the text.

The living constitution view is not wholly free form, as the text is still there as a constraint, but within that constraint you have room to argue in a number of cases. Why is the "interstate commerce clause" interpreted differently than the "indian commerce clause" and the "foreign commerce clause"? Because the commerce clause itself isn't very specific and judges made up the law involved on a case by case basis in part in light of the different needs facing the country at the time of the case in question. If a judge starts making rulings that are wholly indefensible, there are impeachment procedures available, in most cases higher courts to review the ruling (or other Justices in the case of the Supreme Court) as well as Congress's right to establish other courts and change a given court's jurisdiction. It would take a massive judicial conspiracy to really rob of of our rights wholesale, and that seems like grounds more impeachment.

The actual Constitution is, in effect, both the written document and the case law surrounding and interpreting it. In part we give effect to that case law (even when we ourselves think that case law was "wrong" when decided) because of the practicality you mentioned. A person may think that a given case was or untrue to the original meaning of the Constitution, but if other reasonable people disagree with your interpretation and changing it will not resolve any great problem, why change it? The problem then is that every case, however "wrong" one may believe it to be subjectively, was likely decided by reasonable men and women.

 

The alternative is a constitution that is so large and unweildy as to make it utterly useless from one generation to the next. The founders, in this part at least, knew what they were doing. They specifically left the framework detailed but the rest vague enough to allow the Congress & states to work out most of the details and permitted the Supreme Court to judge when they went too far.

This is the heart of the genius of the Constitution.

You can't say that the Supreme Court can judge the constitutionality of, say, the Congress passing a law barring your right to go to church, but NOT to judge the constitutionality of the state of Arizona denying Ernesto Miranda his rights while being arrested.

Heavy is the burden and it's impossible to split hairs in the way that YOU want regarding the Supreme Court unless you deny them that right altogether. I would rather have the system the way it is, rather than deny the Supreme Court the right to check an over-bearing government.

Note: I totally agree with Quadraphonics statements regarding the Amendment process, especially how easy it is in various states. Lucky for us where I live, the Ohio the amendment process is sufficiently difficult as to deny knee-jerk politics.

~String