A dead constitution is better than a live one

Great Debates
21

The American political system is like football. The Constitution is the rules of the game and the rules will generally stay the same year after year. However, just because the Canton Bulldogs won the Championship back in 1920, doesn’t mean they should be declared to be the Champions every season from then on.

So, like an expansion team, every generation takes the Constitution which was written in 1789 and applies it to the issues of their own times. We may not come up with the same answers that would have been given in 1789, but we don’t live in 1789. We are no more required to ask “what would Alexander Hamilton do in a situation like this?” then Hamilton should have tried to guess what Dick Cheney would do.

22

Who cares? The alternatives are just as malleable and inconsistent as the right wing’s shibboleth of “original intent.”

23

IANAL You are battling a chimera. Courts do not, willy nilly, reinterpret the Constitution or overturn precedents. Judges are at least as cognizant of the need for continuity as you are.

Congress is much more likely to pass a law that drastically alters a mode of doing business than a court is to overturn a precedent upon which people have relied for their actions for many years.

However, society has changed tremendously since 1789. The world was a much cruder and less civilized place then and the founders “original intent”, which was not that unanimous in any case, doesn’t apply today in many instances.

24

Sure they are, but is continuity enough? Through a serises of gradual changes, a court might eventually hold that Constitutional provisions barring racial discrimination actually require racial discrimination. This sounds crzy, but that position was seriously argued in California by the ACLU and others in an effort to overturn their Civil Rights Initiative.

A series of campaign finance reform laws and judicial decisions on them have led us to the point where a federal agency is empowered to decide whether certain political advertisements can be broadcast, depending on the content of the ads (in certain circumstances.) In effect the government prohibits certain ads based on their content. And, it’s because they’re dishonest; it’s because they say things like Vote for Gore! I believe that this practice would have been seen as obviously unconstitutional 200 years ago. We got here by a series of steps.

Because (as I understand it) SCOTUS treats past SCOTUS decisions as if they were a part of the Constitution itself, they can move farther and farther away from the rights and liberties that were originally guaranteed. It’s of limited solice that they can only take our rights away in a gradual, contnuous fashion. :frowning:

25

Correction

And, it’s not because they’re dishonest…

26

I dunno. This seems more like wishful semantics than anything real. Scalia is no strict constructionist. He plays one well when the decision he wants is better supported by that pronouncement, but he is quite capable of being an “activist” judge with a “living” interpretation. (He never announces that, of course, having to keep up appearances of his “original intent” propaganda.)

Look over his decisions on the 5th Amendment’s “Takings” clause. No original framer would recognize his decisions–and we are not talking about new technology, here, just a desire to change the way that the government does business to one that Tony prefers. One can argue that he has always been “correct” (obviously, I would not), but one cannot argue with either a straight face or a knowledge of what he has written that he consistently argues “original framers”.

His battle against the Commerce Clause can be argued on original intent lines, but I have found that the way it has been interpreted is as close in real life as his purported rendition. Has the Commerce Clause been broadened beyond the Founders’ intent? Absolutely. Do his “corrections” come closer to the Founders’ intents? Not really. His decisions simply go in a different direction than the one followed without actually going back to the words as written.

27

A court might eventually do a lot of things. You can’t hold a court responsible for what one of the sides in a dispute argues. What did the court decide in the case you are talking about?

Could you “story board” this for us so that we can see for ourselves whether or not your analysis holds water?

Of course the Supreme Court treats its past decisions as important. People have made vital economic, social and political decisions based on those rulings and taken action on those decisions. Large investments have been made, career paths chosen and started on, etc. There would be considerable disruption if the court ignored previous rulings and overturned itself or issued contradictory rulings as a usual practice.

What “rights and liberties” that were originally guaranteed has the court moved further and further away from? I can think of one “right” that has been lost, the “right” to own other humans as property, but that wasn’t the court’s doing.

It was one of the founders, Thomas Jefferson, who argued that
“the world is for the living, not the dead” and so the past can only serve as a guide as to present actions, not as a rigid rule. 2002 is not 1789 in any way, shape or form.

28

The lower court agreed the ban on racial discrimination should be interpreted to mean that racial discrimination could not be banned. This decision was overturned on appeal, but not unanimously IIRC.

Scroll down on this link and you’ll find four links where the ACLU sets out their free-speech, anti-CFR position. http://www.aclu.org/issues/freespeech/hmfs.html Here’s another link http://www.heritage.org/library/legalmemo/lm5.html Also http://www.cato.org/dailys/05-08-01.html

My point is that they treat them as more than important. They treat past decisions as if they were additional parts of the Constitution itself.

The 10th Amendment is nearly dead, as is the 9th Amendment. Free speech has been eroded through harassment laws and campaign finance reform. Many university speech codes violate the freedom of speech in the 1st Amendment. The right to bear arms has been eroded particularly in places like New York City and Washington D.C. Guaranty against double jeopardy has been eroded via federal hate-crime laws. E.g. the policiemen who beat up Rodney King in Los Angeles were acquitted under state law, but then were re-tried on essentially the same facts and convicted under federal law.

29

So the final decision did agree with your position and your mad because it wasn’t unanimous?

You are still blaming the court for the content of an argument by one side of a dispute. Would you have the court tell the ACLU that they can’t make that argument?

But all Supreme Court decisions, even those you agree with, control the outcome of cases brought subequent to the decision. This looks like a distinction without a difference and is mere quibbling.

I love the way you give specifics about how the court has dealt with these matters. Many times institutions go far beyond what the court decision requires. Examples are the cases where students are prevented, by teachers and administrators, from carrying Bibles in school. As far as I know, no court has ever required that. And I agree that many schools speech codes are ridiculous, but I don’t think any court mandated those codes. Cite a case where some court did and I’ll be shown to be wrong.

New York’s gun laws are far from a recent development and have been upheld by courts that you would consider models of judicial restraint. The original New York State gun law was passed in 1911.

The lawyers among us can clarify this but I don’t think that “double jeapardy” has ever been as iron clad as I thought it was. The Constitution only prohibits double jeapardy in capital cases. I.e no one shall twice be put in jeapardy “of life and limb” for the same crime. This has been extended to other than capital offenses over time. However, if a crime takes place in multiple jurisdictions I think that the double jeapardy thing gets pretty hazy.

And the Rodney King thugs weren’t tried twice for the same crime.

30

One transaction can be both a state crime and a federal crime, and you can be tried for both. That’s not double jeopardy, it’s two different crimes under two different sovereigns. This isn’t a recent development either, it’s been around long before the King trials.

It wouldn’t have been double jeopardy even had there been both a state and federal criminal trial, but wasn’t the federal trial in the Rodney King case a civil trial for damages against the city of LA (specifically, a Sec. 1983 action)?

31

pravnik, I’d had forgotten about the civil suit fo damages. There were two criminal trial before that. In the first one, the policemen were acquitted; in the second they were convicted.

Was it double jeopardy? Scholars can certainhly disagree. One can make a case that the law under whcih the federal prosecution took place violated the 10th Amendment. However, we have lost almost the entire protection of that amendment.

David Simmons, if you want to read the cites and discuss the constitutional issues, I’ll be happy to do so.

Yes, I am upset that there are a susbstantial number of judges who would interpret the constitution to mean the opposite of what it says.

Did you ever read Ray Bradbury’s *Farenheit 451[i/]? Suppose judges intrepreted Freedom of Speech to mean that the government was required to restrict certain speech. Would you be upset? If you abandon Original Intent, there’s nothing to prevent that from happening, as long as there is a series of small, continuous steps.

I agree that institutions other than the courts have also restricted our freedoms.

I do not claim that the “Living Constitution” concept is a new problem. On the contrary, I’d say that it’s force has waned a bit since the period 30 to 50 years ago.

32

[QUOTE]
posted by cbtcad:
…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.[/QUOTE

When’s the last time anybody saw a member of Congress lose an election because he voted for a law that was later found to be unconstitutional? In fact, if courts did not have judicial review, how would we know when Congress had overstepped its authority, such that members could be turned out at elections? By popular uprising?

And would Congress then have to enact specific legislation to repeal a law that was unconstitutional to begin with? It couldn’t simply become inoperative until somebody declares it so.

Basically, I agree that judicial review is a vital check on Congress – even moreso than elections.

33

TheeGrumpy – of course you are right. OTOH where’s the vital check on the courts if they make an unconstitutional decision? There’s even less of a check on them than on legislators, because they’re appointed for life.

In my opinion the Supreme Court has done a pretty good job with their decisions over the years. We’ve been lucky. If the SCOTUS ever makes a bunch of terrible decisions, we would have no way to get them changed. (except for the difficult process of amendment.) We would jusgt have to live with them.

34

december, let’s review the bidding shall we?

You wrote: "A series of campaign finance reform laws and judicial decisions on them have led us to the point where a federal agency is empowered to decide whether certain political advertisements can be broadcast, depending on the content of the ads (in certain circumstances.) In effect the government prohibits certain ads based on their content. And, it’s because they’re dishonest; it’s because they say things like Vote for Gore! I believe that this practice would have been seen as obviously unconstitutional 200 years ago. We got here by a series of steps."

I then asked: ** "Could you “story board” this for us so that we can see for ourselves whether or not your analysis holds water? "**

Your responded with: "Scroll down on this link and you’ll find four links where the ACLU sets out their free-speech, anti-CFR position. <http://www.aclu.org/issues/freespeech/hmfs.html> Here’s another link <http://www.heritage.org/library/legalmemo/lm5.html> Also <http://www.cato.org/dailys/05-08-01.html> "

I came back with: "You are still blaming the court for the content of an argument by one side of a dispute. Would you have the court tell the ACLU that they can’t make that argument? "

And you responded with the quote that opened this post. I have read the posts, several times and I can find no reference to any court decisions about current campaign finance (CFR) reform laws in any of them.

The four ACLU papers are testimony before congress in opposition to CFR, letters to the Federal Election Board urging caution in implementing any CFR law, urging that the internet is different than paid advertising or network TV and shouldn’t be treated the same. I searched in vain for mention of any court decisions in conjunction with CFR.

The Heritage Foundation cite also expressed opposition to CFR laws in the form of Shays-Meehan or McCain Finegold and alerting their readers that the house was taking it up and in their words, “may be the final bulwark against a serious violation of our First Amendment rights.” Once again, I couldn’t find a single word about court decisions relative to CFR.

The Cato Institute cite was an ad hominum attack on Sen. McCain along the lines of this excerpt: “Yet, no one said a word in January when Sen. John McCain (R-Ariz.) boasted on “Hardball with Chris Matthews” that his proposed restrictions on political advertising would prevent the National Association for the Advancement of Colored People (NAACP) from running ads during a presidential campaign.” I must be stupid because I couldn’t find anything about court decision relative to CFR in this cite either.

Where in any of the cites you gave is there anything about the series “… of campaign finance reform laws and judicial decisions …” that you referred to in the quote from your post above?

I get the feeling that you think good research consists of posting a bunch of cites whether or not they have anything to do with your point.

I’m still waiting for a demonstration proving your claim about that “series of court decisions” taking away our First Amendment rights in the form of CFR.

Oh yes one more thing, I notice that the ACLU agrees with you in opposition to CFR. Y’know, I might have to rethink my support for the ACLU.

35

I sure wish I had written McCain-Feingold!

36

<<I’m still waiting for a demonstration proving your claim about that “series of court decisions” taking away our First Amendment rights in the form of CFR. >>

You might look up the Buckley v. Vallejo decision. IIRC this decision struck down some parts of an earlier CFR bill, but left some parts standing that might be considered to infringe on free speech. I am concerned that today’s SCOTUS will allow more free speech violations to stand when they review McCain-Feingold.

37

december, “original intent” is merely a different way of giving “life” to the Constitution.

Intent is always an issue of fact for interpretation and determination. How do we determine the intent of the FFs?
The traditional methods are as follows (1) review of Federalist Papers; (2) review other writings, personal and public, of the FFs; and (3) review the legislation passed by the 1st Congress, on the presumption that the First Congress contained a goodly percentage of the FFs.

Right away, we run into a huge problem - we are relying on extrinsic evidence, written for purposes other than forming the Constitution. The Federalist Papers, for example, were (admittedly very erudite) propoganda, for the purpose of convincing others to ratify the Constitution. When was the last time propoganda told the whole truth? As for the legislation of the First Congress, well, we’ve already established Congressmen don’t give constitutionality the highest priority. Personal writings have a gamut of problems themselves.

But even if the extrinsic evidence was wholly useful, we have another problem - we don’t know the thoughts of all the FFs. 55 delegates (of 70 chosen) attended the Constitutional Convention. Only 39 actually signed the Constitution. The Federalist Papers and personal writings are largely from a few chatterboxes. Do they represent the thinking of a majority of the FFs? We think so, but can’t be sure. Also, should we consider the opinions of those delegates who didn’t sign the Constitution? Oliver Ellsworth, for example, didn’t sign, but later wrote the Letters of a Landholder to promote its ratification. Should the Letters of a Landholder be considered when trying to determine original intent?
The First Congress by no means matched the Constitutional delegates in makeup, so its legislation may also not give us good insight into the “intent” of the FFs.
So, Scalia’s and others views on “original intent” probably don’t take into account the “intent” of

And of course, we have the flip side of the problem. Our view of original intent includes looking at the thoughts and writings of such people as Jefferson and Adams. In this thread, several people have cited Jefferson, and Adams impact on the view of the Constitution is well-known.
But neither were delegates to the Constitutional Convention. They can’t possibly be considered part of the consensus that makes up “original intent”.

Then, there are problems of historiography. I heard recently of letters by Jefferson that were just discovered. What if FF papers were found that altered in some way our conception of original intent? Do we change constitutional jurisprudence at this late date?

In summary, Scalia and his ilk are trying to read the minds of people dead around 200 years, many of whom never gave expression to their opinions, and many of those who did did so as part of a propaganda campaign.
It’s a fool’s game Scalia is trying to play. We can’t determine original intent - so instead, let’s simply interprete the Constitution and go from there. It’s worked well since Marbury v. Madison, in 1803. Why mess with a good thing?

Sua

38

I’m glad you showed up, Sua. I agree that trying to determine original intent is problematic, for all the reasons you give.

Sua – Can you expand on what you mean by “let’s simply interpret the Constitution and go from there.” If I’m a judge, what should I do with the words of the Constitution?

Should I look at the literal meaning? Should I find a clever way to use them to justify what I believe is good for society? Should I use them to support less powerful groups, such as prisoners or welfare recipients or illegal immigrants?

And, if an existing decision conflicts with the words of the Constitution, should I follow the decision or the Constitution?

Or, is it, Anything goes? In practice, the supreme court can make any decision they care to, as long as 5 votes are present.

The California Supreme Court took a unique view of original intent in Lie v. Yellow Cab around 1964. This decision replaced Contributory Negligence with Comparative Negligence. (That is someone partially at fault could collect partial damages, rather than being barred from collecting damages.)

It was alleged that the words of the existing law could be read to call for Comparative Negligence. The Court analyzed this argument using original intent. They ruled that this was not the intent of the law, since the concept of comparative negligence had not even existed when the law was written.

They went on to ignore their own analysis. They decided that they preferred the doctrine of Comparative Negligence, so they adopted it reagredless of what the law said. Their view was that they had the power to control civil court processes, regardless of statute.

BTW I agree that whatever it is SCOTUS is doing has worked pretty well. Still, how would we know if it worked badly?

E.g., did the Warren Court reforms cause crime to increase? There was a jump in crime after the reforms of the Warren Court. How cojld we find out if there were a cause and effect relationship? I don’t know.

The courts have made it much easier to file lawsuits. I think the lawsuits have reached a point where they are bad for society. E.g., Los Angeles just announced that they were closing a bunch of health clinics, because of lack of money. If LA spent less money defending themselves against lawsuits, maybe they could have afforded to keep the clinics open.

39

It’s really pretty simple. We determine what the Constitution means by looking at what people before us thought the Constitution meant, through looking at precedent.

We then apply the precedent to the facts. The precedent will not, by definition fully apply, because if it did, there wouldn’t be a case before the court. The facts will be different, thus changing the application of said precedent.

The new decision becomes precedent, and will be applied to the next case that comes along.

That’s the important point, december - the facts are always different. Thus, the intepretation of the Constitution will always be changing. And that’s the way it should be.

Sua

40

This will be my last statement on this subject (voices off: “Thank God!”). It seems to me that it is clear by this time that you don’t have the slightest idea what you are talking about and are merely chanting the mantra, “Original intent.” Further discussion is just a waste of time, those who see through you already have been convinced, you and others will never be.

You spoke of a “series of court decision” and gave the URL of 4 sites as support. Not a single one of them had anything about any court decision, let alone a “series.”

Then when that is pointed out to you, you come up the name Buckley v. Vallejo with no specific address. I couldn’t find the actual decision, which puzzles me. However, it would seem that the court struck down limits on campaign spending as an unconstitutional limitation of free expression. So what’s your complaint about that?

Limits for the purpose of “preventing corruption” were left in place. The website austinreview points out that subsequent to this decision several district courts have construed that narrowly and have thrown out attempts to limit campaign contributions based on it.

SuaSponte Well said. It turns out that when people speak of “original intent” they mostly mean the selected “original intent” of James Madison, and to a lesser extent, Alexander Hamilton. The only extensive record of the proceedings of the Constitutional Convention that records the actual substance of the debates is the journal of Madison. Otherwise we wouldn’t have the foggiest idea of what the various debates were and who said what.

Madison, Hamilton and John Jay collaborated on The Federalist which, as you say, was pro-ratification advocacy. Of the 85 articles, Jay is credited with only 5, Madison with about 30 and Hamilton with the remainder.

To say, with confidence, that you know “original intent” of the founders is silly and beside the point anyway. The only “original intent” that counts was the intent to form a flexible form of government that would serve the needs of the people of the country, taken as a whole.

Those who rant about “runaway courts” are battling a non-existent bogeyman-under-the-bed. Courts rarely act like their strawman caricature and on those rare occasions that one does, even the Supreme Court, it is corrected, usually sooner rather than later. Although I’ve got to admit that the spectre of the decision in the case of the WWII internment of Japanese is with us today in the form of “get those damned terrorsts bastards at all costs.” Why do I get the feeling that particular “free and easy” interpretation of the Constitution is OK with december in this instance?