A dead constitution is better than a live one

[december]

On another thread, carnivorousplant wrote

Scalia said on NPR that he believes the constitution to be a “dead” document; it means exactly what they said in the 18th century, which I find interesting.

IANAL but I have read some of Scalia’s presentations. I find his arguments persuasive.

A “living” constitution is no constitution at all. It means that judges can interpret its words as they please. So, today’s judges are free to take away any and all civil liberties. Under the living consitution, judges are free to amend the constitution to their own liking, provided they move in small steps. These small steps can add up to enormous changes in meaning.

E.g., on that other thread, Minty Green opined that it was unconstitutional for a school to require students to recite the Declaration of Independance, because it mentions the “creator.” Minty is probably right, given today’s interpretations. However, it’s obvious that the founders who wrote both documents didn’t intend the constitution to limit the reading of the D of I.

Another problem is taking certain issues out of the public arena. E.g., Roe v. Wade had an outcome I like, but it’s an awful decision from a legal POV. As as result, the legislature is severely limited in its ability to modify and improve abortion law. So, we saw the outlandish Roe v. Wade II, which made no Constitutional sense at all. It enacted a pretty sensible law, IMHO, but it’s not democracy and it’s not interpreting the Constitution.

Laws relating to prisoner rights have followed a similar path. This area has been taken over by the judges and removed from the democratic arena.

Of course, the constitution needs to be interpreted somehow when applied to things that didn’t exist when it was written. We all agree about that.

What I’m specifically addressing is the concept that judges should change the consitution just to make it work better and to accomplish ends that they believe in.

I’m also addressing the slippery slope, which one can see clearly in the “freedom of religion” decisions over the years. At one point in time, school prayer was banned – a decision that founding fathers might not have agreed with. Now, a patriotic pledge, not a prayer, is banned because of a single mention of God.

[erislover]

Congress changes the constitution. I thought that was self-evident.

[erislover]

Congress changes the constitution. I thought that was self-evident from reading the document.

[erislover]

Well, hmm, didn’t catch that one in time. Apol-logies.

[pldennison]

School prayer was never banned, nor does the 9th Circuit’s decision “ban” the Pledge of Allegiance. But don’t let facts get in the way of your little diatribe.

[cbtcad]

The problem though is that if you take away the power of the judiciary to rule on the constitutionally of laws and actions you then tip the balance of power to the legislature. Though the courts have a great deal of power in their ability to rule on the constitutionality of laws and events they can still be overruled, though sometimes with much difficulty. However, if the courts cannot rule on the constitutionality of laws it is much harder to check the power of the legislature until, of course, the next time there is an election.

[pldennison]

School prayer was never banned, nor does the 9th Circuit’s decision “ban” the Pledge of Allegiance. But don’t let facts get in the way of your little diatribe.

[cbtcad]

The problem though is that if you take away the power of the judiciary to rule on the constitutionally of laws and actions you then tip the balance of power to the legislature. Though the courts have a great deal of power in their ability to rule on the constitutionality of laws and events they can still be overruled, though sometimes with much difficulty. However, if the courts cannot rule on the constitutionality of laws it is much harder to check the power of the legislature until, of course, the next time there is an election.

[Gadarene]

Laws relating to prisoner rights have followed a similar path. This area has been taken over by the judges and removed from the democratic arena.

december, please please please read up on the concept of “due process.” I believe it’s mentioned in this Constitution of yours.

[december]

*Originally posted by Gadarene *
december, please please please read up on the concept of “due process.” I believe it’s mentioned in this Constitution of yours.

Also in my constitution are “democracy” and “separation of powers.” However, I’d rather avoid going off on a tangent.

The point I would like to debate is that a “living constitution” amounts to an excuse for judges to rule as they please. In effect, it’s like having no Constitution, except that judicial laws are generally moderate changes to current conditions.

[msmith537]

A “living” constitution is no constitution at all. It means that judges can interpret its words as they please. So, today’s judges are free to take away any and all civil liberties. Under the living consitution, judges are free to amend the constitution to their own liking, provided they move in small steps. These small steps can add up to enormous changes in meaning.

Not really. First of all the founding fathers understood that they could not forsee every possible circumstance that would require a change to the Constitution. That is why they made provisions for the creation of Amendments and why they didn’t make it easy.

ie:
Slavery
Womens right to vote
and so on

E.g., on that other thread, Minty Green opined that it was unconstitutional for a school to require students to recite the Declaration of Independance, because it mentions the “creator.” Minty is probably right, given today’s interpretations. However, it’s obvious that the founders who wrote both documents didn’t intend the constitution to limit the reading of the D of I.

Remember that the Constitution was written in a time where it was assumed that white God-fearing men were the center of everything. The idea of women owning property and voting, Negros not being property and voting, and a significant % of Americans worshipping Allah, Bhuda, Vishnu or …ah miscellaneous would seem as strange to them as waking up in 300 years and finding a word ruled by Apes would seem to me or you.

I’m also addressing the slippery slope, which one can see clearly in the “freedom of religion” decisions over the years. At one point in time, school prayer was banned – a decision that founding fathers might not have agreed with. Now, a patriotic pledge, not a prayer, is banned because of a single mention of God.

Not to get off an a tangent but it strikes me as arrogant to just assume that the mention of “God” is fine in government documents and ceremony. Most of us take it for granted just because the majority of Americans are Judeo Christian and “God” is mentioned in everything from our currency and national symbols to the swearing in of our Pres. I believe that I would be very offended if Jesus was on the 5 dollar bill as if not believing in him was just an eccentricity that is to be tollerated from us wacky Jews.
Bear in mind, the founding fathers were just men. Politicians really. That’s all. They weren’t gods or prophets or anything. All laws, including the Constitution are just people’s opinion on how society should be run. No law should be so written in stone that it cannot be changed as society changes. Even the Ten Commandments have loopholes.

Picture the following:
Discussing the 2nd Ammendment with Ben Franklin and demonstrating modern weapons that give an individual person the firepower of a company of Redcoats.

Ask George Washington his oppinion on free speach in a society where information on everything and anything can be broadcast to the entire world in minutes by anyone.

Hear Thomas Jefferson, our first Secretary of State’s thoughts on the fact that he may no longer own our current Secretary of State.

Face it. These were smart enough to know that they didn’t know everything.

[Duckster]

*Originally posted by december *
Also in my constitution are “democracy” and “separation of powers.” However, I’d rather avoid going off on a tangent.

Last time I checked (about 30 seconds ago) “democracy” does not exist within the US Constitution.

Yet the first three articles of the Constitution display an excellent separation of powers.

One really nevers knows what there is to learn when the source is so readily available. :wally

[Sterra]

Face it. These were smart enough to know that they didn’t know everything.

Also a dead document could do the exact same thing that a living document could. Scalia’s doesen’t base his interpretation on what the founding fathers meant. He bases it on what he thinks that the founding fathers meant, and that was probably hard to understand when they were alive.

[JDM]

*Originally posted by msmith537 *
and a significant % of Americans worshipping Allah, Bhuda, Vishnu or …ah miscellaneous would seem as strange to them as waking up in 300 years and finding a word ruled by Apes would seem to me or you.

Jefferson:

Where the preamble (of the Virginia Act for Religious Freedom- JDM) declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting the words ‘Jesus Christ,’ so that it should read, ‘A departure from the plan of Jesus Christ, the holy author of our religion;’ the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mohammedan, the Hindoo and Infidel of every denomination.

As regards the OP- december, would it follow from the “dead” interpretation of the Constitution that only those arms in existence at the time of its framing are covered by the 2nd amendment?

Then again, calling the 9th amendment “dead,” and thus making ensuring that it be strictly observed is a good thing. I would guess, though, that Scalia would want the other meaning of “dead” when referring to the “waterblot.” JDM

[december]

*Originally posted by JDM *
As regards the OP- december, would it follow from the “dead” interpretation of the Constitution that only those arms in existence at the time of its framing are covered by the 2nd amendment?

I would distinguish two cases. When new things exist, e.g., modern armaments, the constitution should be interpreted by the courts in terms of what exists today. We don’t need an amendment to deal with microwave ovens.

OTOH religion is just as phony today as it was 200 years ago, so any change in “freedom of religion” ought to be by amendment, rather than judicial interpretation.

Then again, calling the 9th amendment “dead,” and thus making ensuring that it be strictly observed is a good thing. I would guess, though, that Scalia would want the other meaning of “dead” when referring to the “waterblot.” JDM

I agree, if I understand this comment. Judge Bork (I think) when asked about the 9th Amendment, said it was “dead,” or that it meant nothing, intending to say that the courts no longer gave it any force. I’'m using “dead” to mean “unchanging.”

Sterra Scalia doesen’t base his interpretation on what the founding fathers meant. He bases it on what he thinks that the founding fathers meant, and that was probably hard to understand when they were alive.

That’s a good point. Still, all of contract law is based on the idea that contracts can be stated clearly enough to be enforced. In truth, this isn’t always the case. You should see some of the fuzzy reinsurance contracts that I have to deal with. Still, it’s a reasonable ideal. The fact that contracts may be hard to understand doesn’t mean that a judge is allowed to re-write them to mean what she would prefer.

Also, a standard of “original intent” is a definable goal. If that’s not your standard, what’s left? I agree with Scalia – nothing’s left. There is no alternative

I would invite the real constituional scholars to correct me if I’m wrong.

[mhendo]

December wrote:

A “living” constitution is no constitution at all. It means that judges can interpret its words as they please.

…and then wrote…

Of course, the constitution needs to be interpreted somehow when applied to things that didn’t exist when it was written. We all agree about that.

Well, if you really believe what you say in the first quotation, then i don’t know how you can make the argument that you do in the second quotation. Given that interpretation is necessary every time a Constitutional issue comes before the courts, your argument is nothing less than a self-serving attempt to have your cake and eat it too.

Why is it that when the Constitution is interpreted in a liberal or progressive way, conservatives cry “judicial activism” and make the spurious assertion (as december does) that judges actually “change the constitution”, but when the Constitution is interpreted to suit conservatives, it is not interpretation, but simply a reaffirmation of timeless Constitutional principles? Give me break from this sophistry!

[december]

mhendo, this distinction shouldn’t be that hard to understand.

When radio is invented, it’s a court decision that interpret broadcasting as a form a speech.

OTOH when we want to give women the vote, that requres a formal Constitutional amendment.

[mhendo]

When radio is invented, it’s a court decision that interpret broadcasting as a form a speech.

OTOH when we want to give women the vote, that requires a formal Constitutional amendment

Yes, yes, apparently all very simple for issues that are directly and explicitly mentioned in the Constitution (although the ongoing debate over the second amendment indicates that even apparently straightforward issues are anything but). Also, given your argument that the Constitution should be treated as a dead document, why should we even allow judges to interpret where new technology etc. fits into it? Why not, for example, force Congress to amend the Constitution to include radio under the rubric of free speech, rather than allowing judges to make the decision? A ridiculous idea, i know, but one that is logically consistent with your transhistorical absolutism. And what do you do about issues that were not mentioned at all in the Constitution, like abortion? Surely that requires interpretation from someone as to where it fits into the legal pantheon. And while doing nothing can sometimes seems like the fair thing to do when an issue is undecided, it’s not as equitable as that, because any delay constitutes a de facto benefit to those who benefit from the status quo on any given issue.

The problem also is that your OP went considerably further than the quotes above, bringing in a variety of irrelevant and/or incorrect assertions (as pointed out by other Dopers) that ostensibly buttress your position but that, in fact, fall down under any reasonable level of scrutiny.

I also love your assertion regarding Minty Green’s point about the Declaration of Independence. You said:

However, it’s obvious that the founders who wrote both documents didn’t intend the constitution to limit the reading of the D of I.

I don’t know when Jefferson or Madison or any of the other founders mentioned their intentions to you, but i can’t recall anything in any of their writings (or those of the other founders) that mentions the recitation of the D of I in schools. Unless you have some direct line of communication to the dead, your opinion of what the founders intended is just that, an opinion. And opinions are like assholes - everyone’s got one.

Furthermore, it’s amazing that people like you, who claim to be appealing to the historical intentions of the founders in this whole debate, seem to have little historical sense of “the founders.” While a certain level of agreement was reached among these people in order to draw up the Constitution and the Bill of Rights, anyone with even a cursory knowledge of American history knows that “the founders” disagreed among themselves, often vehemently, on many issues. To ascribe a single intention to this group of people, much less to project such intentions forward two centuries to a time they never knew, is the height of either stupidity or arrogance.

Finally, i love your ‘argument by shotgun’ approach, in which you send out a spray of assertions and hope that some find their mark. Then, when other Dopers (e.g. erislover, pldennison, gadarene, above) point out your manifest errors you either ignore their posts or say that you don’t want to go “off on a tangent,” when the issues mentioned by these people are directly relevant to the argument you are making. But hey, don’t take those blinkers off just for the sake of clarity and coherence, will you.

[JDM]

*Originally posted by JDM *
Then again, calling the 9th amendment “dead,” and thus making ensuring that it be strictly observed is a good thing. I would guess, though, that Scalia would want the other meaning of “dead” when referring to the “waterblot.” JDM

The irony in the above is that I was interrupting my work as an editor/proofreader to write it. JDM

[december]

*Originally posted by mhendo *
Yes, yes, apparently all very simple for issues that are directly and explicitly mentioned in the Constitution (although the ongoing debate over the second amendment indicates that even apparently straightforward issues are anything but)…

Yes, even if we agree on “original intent” as a consititutional philosophy, many, many thorny questions remain.

The problem also is that your OP went considerably further than the quotes above, bringing in a variety of irrelevant and/or incorrect assertions (as pointed out by other Dopers) that ostensibly buttress your position but that, in fact, fall down under any reasonable level of scrutiny.

Fair point.

Unless you have some direct line of communication to the dead, your opinion of what the founders intended is just that, an opinion.

Well, I think we can make a reasoned guess based on various factors, including their other writings. The D of I was one of their other writings.

I have seen reasonable arguments that this week’s P of A decision was correct based on current legal decisions. I have never seen an argument that it’s correct based on original intent. Feel free to present that case. I’d be interested to see it.

Finally, I love your ‘argument by shotgun’ approach

Thank you for the suggestion, no matter that it’s phrased sarcastically.

Getting back to the OP. Mhendo you have made a good case that using Original Intent doesn’t come close to answering all the questions. However, What are the alternatives as a basis for constitutional decisions?