# Is the Constitution a 'living breathing' document? **URL:** \ **Category:** Great Debates\ **Created:** [November 17, 2008, 8:33pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169 "2008-11-17T20:33:52Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2008, 2:54pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/41 "2008-11-18T14:54:11Z")
> [@Shodan](#): > > You would need something like It would have the practical effect of allowing the people the right to determine a new, previously unenumerated right. > Okay, then by this standard, before the Court found this unenumerated right to privacy, none of the other rights under the First Amendment existed. > Are you asserting that there was no right to freedom of speech before _Roe_? > > If ti did exist, then enumerated rights don’t need this “privacy” provision. Thus, all that a previously unenumerated right needs is for “the states, or the people” to enumerate it. Just as the Tenth states. C’mon…read the 9th Amendment again. _The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people._ That was explicitly put there to tell us that U.S. citizens possess rights, Constitutionally, beyond those explicitly enumerated in the first eight amendments. So, it is _absolutely_ proper, constitutionally, to infer a right to privacy in the Constitution particularly since it is strongly implied in the 1st, 3rd, 4th, 5th and 14th amendments. You can certainly argue that applying that to Roe was a bit of a stretch but finding “privacy” in the Constitution is no stretch at all legally. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 18, 2008, 2:56pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/42 "2008-11-18T14:56:42Z")
> [@jtgain](#): > > 1. The belief that the words in the constitution can change due to changing times (e.g. The death penalty is unconstitutional, even though Amd. 5 clearly states that a person may be deprived of life if given due process) when the framers had an opportunity to comment on them. But the Constitution then goes on later to ban “Cruel and Unusual Punishment.” Do you honestly think those words were chosen as an attempt to permanently seal the standard of determination of what was permitted at the standards of the Bill of Rights? Or given the choice of the words, isn’t it a more reasonable presumption that this was written to take into account changing standards, and, absolutely conceivably, there may be a day (hell, we might have already reached it) when the death penalty is considered “cruel and unusual” sufficient to make it unconstitutional? And no, the 5th Amendment nowhere says “a person may be deprived of life if given due process.” Bad textualist! No cookie! It actually says a person may **not**"be deprived of life, liberty, or property, without due process of law." While, with my filthy original intent mind, I am willing to admit that this shows that capital punishment was envisioned, it is not what you say it is. Such a provision is absolutely compatible with the idea that the death penalty could be unconstitutional under a separate section. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 18, 2008, 2:56pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/43 "2008-11-18T14:56:43Z")
I see **Shodan** is back spreading his “10th Amendment” tripe. If anyone is interested, [Here](http://boards.straightdope.com/sdmb/showthread.php?p=10444133#post10444133) was a brief recap of the argument I had with Shodan in the Pit. All I can say is, it’s just not worth it to try and “debate” him. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 18, 2008, 3:01pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/44 "2008-11-18T15:01:24Z")
> [@Shodan](#): > > _Roe_ found that the states could not regulate abortion at all during the first two trimesters of pregnancy Bollocks it did. The Court found that the states could not restrict the right to abortion in the first trimester. In the second trimester, states could regulate abortion “in ways that are reasonably related to maternal health.” Any chance of a response to my question regarding your First Amendment shenanigans? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [November 18, 2008, 3:09pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/45 "2008-11-18T15:09:27Z")
> [@Shodan](#): > > No, you aren’t reading. No limits on rights, limits on the federal government’s powers. I am reading. You aren’t saying what you think you’re saying. > [@](#): > > Okay, what rights, and how do we know they exist? All of them. Anything you can imagine is a right. This is why we grant the government power to strip us of our rights; the government doesn’t grant us rights. Seriously, this is a fundamental point in creating the government, which you yourself mentioned in your first response to me. What’s the problem? > [@](#): > > And why is this right to regulate abortion retained by the Supreme Court, instead of by the people, as the Ninth states? I thought we were discussing a right to privacy. > [@](#): > > No, unless you can show somehow that the Founding Fathers intended abortion to be included. Even if I suppose that the Constitution shouldn’t be interpreted with the times, this is a ridiculous standard. It’s just ridiculous. Apart from the words they wrote, themselves subject to interpretation, how are we to know what dead people “meant”? If Thomas Jefferson was stopped by a policeman and arrested on some charge, did he expect that his carriage could be searched? Is this or is this not what the Fourth Amendment means? --I don’t even know where to begin for such a question, nevermind how to actually settle it. This standard of “what the founding fathers meant” is a phantom posing as substance for settling particular questions of law. > [@](#): > > If you can’t, then abortion is not included, and in order to assign the right to regulate it to the government, you need an amendment. So your problem isn’t with privacy, which you agree does emanate from those Amendments, it is with abortion specifically, which cannot possibly be construed to have anything to do with privacy? This is why I asked you to be specific, and I thought you had complied with my request exactly (thanks) but now it seems that the privacy bit was just a red herring and you want to talk about abortion explicitly. :shrug: I notice the Constitution doesn’t permit the government to outlaw murder, human trafficking, drug use or manufacture, either. In fact, I’m 100% sure that the Founding Fathers did not “mean” to allow the Federal government to outlaw MDMA or LSD since there’s no way they could have known about MDMA or LSD. The DEA is simply unconstitutional. Right? > [@](#): > > It would have the practical effect of allowing the people the right to determine a new, previously unenumerated right. You are the exact reason people fought against having a bill of rights. Exactly. Their concern was that the enumeration of certain rights should not count as the definition of all rights. It is exactly what drove the compromise position of the Ninth and Tenth Amendments. That you would decry unenumerated rights while appealing to the Ninth and Tenth and claiming to represent what the Founders intended is really unexpected. > [@](#): > > Okay, then by this standard, before the Court found this unenumerated right to privacy, none of the other rights under the First Amendment existed. They all existed. Everything you can imagine, including completely contradictory rights like your right to live free of knife wounds and my right to stab you. When we create a government, we give some of these up, we take some from others, and so on, in order to form a more perfect union etc. They don’t have to be enumerated. They’re there by virtue of our very existence. > [@](#): > > If it did exist, then enumerated rights don’t need this “privacy” provision. Thus, all that a previously unenumerated right needs is for “the states, or the people” to enumerate it. Just as the Tenth states. The Tenth Amendment does not state that the States or the People must enumerate rights. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [November 18, 2008, 3:21pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/46 "2008-11-18T15:21:42Z")
> [@jtgain](#): > > Brown was obviously extremely activist. Now, I will say that it produced a positive result, but that is a goal not best left to the courts. So it should have been left to the white majorities in places where segregation was practiced? Maybe they would have had a change of heart? :dubious: Still waiting for a strict constructionist to explain the 9th Amendment, which plainly says: > [@](#): > > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The framers themselves knew they could not compile an exhaustive list of rights that ought to be protected, and feared that in attempting to do so, they might leave something out. (Hello right to travel and right to privacy. I see you out there waving.) ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2008, 3:40pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/47 "2008-11-18T15:40:19Z")
> [@jtgain](#): > > Brown was obviously extremely activist. :eek: The 14th Amendment states (in part…bolding mine): _ **All persons** born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. **No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States** ; nor shall any State deprive any person of life, liberty, or property, without due process of law; **nor deny to any person within its jurisdiction the equal protection of the laws**._ Where is the activism in stopping segregation which clearly was unequal protection of the laws? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2008, 3:54pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/48 "2008-11-18T15:54:58Z")
> [@spoke-](#): > > Still waiting for a strict constructionist to explain the 9th Amendment… To add to this, if you want to appeal to Original Intent: > [@](#): > > Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. 1 Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ‘‘It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.’’ 2 > > SOURCE: [http://caselaw.lp.findlaw.com/data/constitution/amendment09/](http://caselaw.lp.findlaw.com/data/constitution/amendment09/) (Note the “fourth resolution” was the 9th Amendment) ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [November 18, 2008, 4:22pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/49 "2008-11-18T16:22:49Z")
I’m still waiting for Shodan et al to reconcile the concept of judicial review with the Constitution. It’s just not in there, and all of their comments about _Roe_ or anything else are absurd. Constitutionally, _Congress_ should be the one interpreting the Constitution – if a majority of them pass a law, then a majority of them believe/interpret that law to be in conformity with the Constitution. The Judicial Branch has **NO** authority to weigh in on the matter. That matches _both_ the text of the document _and_ the Framer’s original intent. Originalism is a frustratingly infantile argument to get to a result you want by claiming that only those that disagree with you are doing so. Not only does it fall apart in its first steps (of course, it’s plausible that someone could hold the honest belief that the Supreme Court shouldn’t have such review powers at all), but also it never makes it to the next step – where does the “original intent” period end? Jefferson certainly had problems wrestling with reconciling some of his Presidential acts with his Constitutional writings – yet he defied them. So which Jefferson do we look at? The list of questions goes on and on, but getting someone to answer them directly and with some crumb of analytical credulity can be like trying to talk politics with Limbaugh – sloganeering, handwaving, and irrelevant name calling. Argue all you want about _Roe_ or _Brown_. But going the right wing marketing route of “them librul activist judges” is foolish: it’s just marketing. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 18, 2008, 5:23pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/50 "2008-11-18T17:23:00Z")
> [@Rhythmdvl](#): > > I’m still waiting for Shodan et al to reconcile the concept of judicial review with the Constitution. It’s just not in there Actually, yes it is in there. > [@The US Constitution](#): > > Section 1 > > The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. > Section 2 > > 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;10 --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Note esepcially the first part of Section 2 - the authority of the Supreme Court extends to “cases arising under this Constitution”. In other words, the Supreme Court _is_ specifically empowered to deal with cases having to do with rights enumerated “under this Constitution”. Unenumerated rights, on the other hand, by definition do not arise “under this Constitution”, since they are not enumerated in it. See how it works? The Constitution says what it actually says. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2008, 5:37pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/51 "2008-11-18T17:37:44Z")
> [@Shodan](#): > > In other words, the Supreme Court _is_ specifically empowered to deal with cases having to do with rights enumerated “under this Constitution”. Unenumerated rights, on the other hand, by definition do not arise “under this Constitution”, since they are not enumerated in it. > > See how it works? The Constitution says what it actually says. Seriously…how do you manage to avoid so completely what others point out? Unenumerated rights ARE in the Constitution! **Read . . The . . Ninth . . Amendment!** ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 18, 2008, 5:39pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/52 "2008-11-18T17:39:19Z")
> [@villa](#): > > And no, the 5th Amendment nowhere says “a person may be deprived of life if given due process.” Bad textualist! No cookie! It actually says a person may **not**"be deprived of life, liberty, or property, without due process of law." While, with my filthy original intent mind, I am willing to admit that this shows that capital punishment was envisioned, it is not what you say it is. Such a provision is absolutely compatible with the idea that the death penalty could be unconstitutional under a separate section. This is why the “evolving document” thought is ridiculous. You are arguing against the plain text. How could the DP be unconstitutional under a separate section so long as due process was given? Is this a fair analogy: A person may not be deprived of the freedom to drive his automobile unless he is not sober. Given: I am sober. Can I be deprived of the freedom to drive my automobile? Now, just because we are adding a right instead of taking one away, why does it matter? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 18, 2008, 5:41pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/53 "2008-11-18T17:41:15Z")
> [@Whack-a-Mole](#): > > :eek: > > The 14th Amendment states (in part…bolding mine): > > _ **All persons** born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. **No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States** ; nor shall any State deprive any person of life, liberty, or property, without due process of law; **nor deny to any person within its jurisdiction the equal protection of the laws**._ > > Where is the activism in stopping segregation which clearly was unequal protection of the laws? Does it matter that the same Congress which crafted the 14th amendment also provided for a segregated school system in Washington D.C.? Wouldn’t that suppose that those words don’t mean what you think they do? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2008, 5:47pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/54 "2008-11-18T17:47:57Z")
> [@jtgain](#): > > Does it matter that the same Congress which crafted the 14th amendment also provided for a segregated school system in Washington D.C.? > > Wouldn’t that suppose that those words don’t mean what you think they do? Meaning what exactly? That Congress may pass unconstitutional laws? Big deal…happens a lot. That society seemed content to let it be that way and the SCOTUS managed to allow it does not change the wording. It’s like Congress and the SCOTUS pointed at a blue ball and declared it red. What are you going to do? You did not answer how you can parse the 14th Amendment that I quoted to show that the Brown v BoE decision was “activist” as opposed to a reasonable reading of what the words actually say. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 18, 2008, 5:54pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/55 "2008-11-18T17:54:57Z")
> [@Whack-a-Mole](#): > > Meaning what exactly? That Congress may pass unconstitutional laws? They drafted that part of the 14th amendment that you are quoting. Then they passed the school segregation law. In the same session. The same Congressmen. Do you think they wrote a part of the constitution and then turned around and contradicted themselves? Or have you, perhaps, assigned a meaning to those words that they did not intend? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 18, 2008, 5:58pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/56 "2008-11-18T17:58:10Z")
> [@Whack-a-Mole](#): > > You did not answer how you can parse the 14th Amendment that I quoted to show that the Brown v BoE decision was “activist” as opposed to a reasonable reading of what the words actually say. I really hate these debates because strict construction always comes down to Brown. Yes, I hate segregation. Yes, I’m glad we are integrated. But we are forced to argue like it’s 1949 and argue from a societal standpoint that no longer exists. Anyways: What if I was superintendant of a segregated school district that was exactly 50% white and 50% black. I appoint Jesse Jackson as sub-super of the black schools, and David Duke as sub-super of the white schools. I give each of them $5 million to run their own districts as they see fit. Now, without making value judgements about segregation, please tell me what part of the constitution this system violates.. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 18, 2008, 6:01pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/57 "2008-11-18T18:01:43Z")
> [@jtgain](#): > > This is why the “evolving document” thought is ridiculous. You are arguing against the plain text. How could the DP be unconstitutional under a separate section so long as due process was given? > > Is this a fair analogy: A person may not be deprived of the freedom to drive his automobile unless he is not sober. > > Given: I am sober. > > Can I be deprived of the freedom to drive my automobile? > > Now, just because we are adding a right instead of taking one away, why does it matter? Not sure I ever called it an evolving document. Just that it includes deliberately relative concepts the meaning of which shifts as society evolves. The bottom line is that you claimed something was in the constitution that isn’t. You read in the intent of the writer to extrapolate from the plain text. I think that is sensible, but it is anathema to textualists. Your analogy simply doesn’t make sense. The Bill of Rights is a limit on what the government may do to a person. A better analogy would be “the government may not remove your license without showing you to be drunk.” That would certainly imply a governmental right to remove licenses for drunk driving, but it would still be subject to later provisions. And those later provisions may, like the eighth, include a deliberately fluid method of determination. So, when initially written, the death penalty was seen as neither cruel nor unusual. Hence it was constitutional, provided due process was given. As time goes on, however, and society changes, the constitution, while remaining unchanged, now may ban the use of the death penalty, whether or not it is applied with due process. The trouble with your static analysis is that it refuses to recognize that “cruel and unusual” was chosen for a reason. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2008, 6:15pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/58 "2008-11-18T18:15:21Z")
> [@jtgain](#): > > What if I was superintendant of a segregated school district that was exactly 50% white and 50% black. I appoint Jesse Jackson as sub-super of the black schools, and David Duke as sub-super of the white schools. > > I give each of them $5 million to run their own districts as they see fit. > > Now, without making value judgements about segregation, please tell me what part of the constitution this system violates.. Because this is _de jure_ segregation. The separation itself is onerus as it defines and “us and them” standard. The government is not supposed to discriminate among its citizens in this fashion. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 18, 2008, 6:20pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/59 "2008-11-18T18:20:12Z")
> [@jtgain](#): > > They drafted that part of the 14th amendment that you are quoting. Then they passed the school segregation law. In the same session. The same Congressmen. > > Do you think they wrote a part of the constitution and then turned around and contradicted themselves? Or have you, perhaps, assigned a meaning to those words that they did not intend? If they intended “separate but equal” then they could have said that. If they intended “separate regardless of being equal” they could have said that too. Congresscritters contradicting themselves…there’s a shocker. :rolleyes: And you keep deflecting it back to me. I want you to parse that Amendment for me to show that Brown was an activist reading. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 18, 2008, 6:28pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/60 "2008-11-18T18:28:03Z")
> [@Shodan](#): > > Actually, yes it is in there. > Note esepcially the first part of Section 2 - the authority of the Supreme Court extends to “cases arising under this Constitution”. In other words, the Supreme Court _is_ specifically empowered to deal with cases having to do with rights enumerated “under this Constitution”. Unenumerated rights, on the other hand, by definition do not arise “under this Constitution”, since they are not enumerated in it. > > See how it works? The Constitution says what it actually says. Only if you assume the Ninth Amendment is a Borkian inkblot. James Mason, if he were around today, would look at you and say, “We fought a war to free ourselves from a King and his Ministry who were intent on overriding our rights. We listed off some that came to mind, and then said explicitly that there are others, and the list is necessarily incomplete, so don’t assume that enumerating some means that the others can be violated with impunity.” In identifying them, and distinguishing them from wingnut hyperboly, reasonable men may disagree. In saying the Constitution guarantees them, neither textualism nor originalism can honestly disagree. It’s there in the plain text of the document. Now, how to determine if a law is constitutionally valid. I think our focus on jurisprudence has missed something. Congress should not pass a law they believe to violate the Constitution. Sam Erwin used to keep a pocket copy of the Constitution and cite it in committee and on the Senate floor. The President should refuse to carry out a law he believes contravenes the Constitution, or more particularly, should refuse to act in a manner that may be authorized by statute but which would in his opinion violate the Constitution. And the court system should rule in accordance with the Law of the Land – meaning that if a case comes before them, their duty is to render justice in accordance with the Law of the Land. Now look carefully at the last two paragraphs of Article VI of the original Constitution. [Previous page](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169.md?page=2) [Next page](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169.md?page=4)