# 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:** 4
**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, 6:35pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/61 "2008-11-18T18:35:20Z")
> [@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. Welcome to the wonderful world of constitutional interpretation, and thank you for helping me make my point. RTFC. It does _not_ say that the Supreme Court will be the final arbiter of constitutionality. It does give them original jurisdiction over many things, but the power to declare laws unconstitutional was _not_ the original intent of the Framers, and it was _not_ included in the text. There is no direct textual Constitutional provision for the review of laws. This review is better left to the legislature – rather than nine appointed-for-life judges, it is better to leave constitutional determination in the hands of the legislature, those who can be voted out if they make bad/unpopular decisions, a much larger deliberative body, and the one in the best place to determine the extent of the law’s reach. So from your very beginning, to get to judicial review, you cannot but take liberties with the text of the Constitution, you cannot help but accept that the Constitution is an interpretable document. Arguing for an originalist/textualist position while adopting --out of whole cloth-- the concept of judicial review shows your hand: you’re either substituting empty marketing slogans for analysis or you want rulings to come out your way but with false labels attached. ---
**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, 7:25pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/62 "2008-11-18T19:25:43Z")
> [@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, 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. Baloney. \*"Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."\* Federalist #78. Judicial review WAS the intent of the founders AND is supported by not only the text of the decision, but also the practice at the time. The rest of your post I, in large measure, agree with. ---
**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, 7:49pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/63 "2008-11-18T19:49:58Z")
> [@Whack-a-Mole](#): > > Seriously…how do you manage to avoid so completely what others point out? > > Unenumerated rights ARE in the Constitution! > > **Read > . > . > The > . > . > Ninth > . > . > Amendment!** No, they are not. That’s why we refer to them as “unenumerated”. If they were in the Constitution, they wouldn’t be unenumerated; they would be enumerated. > [@](#): > > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people See the distinction being drawn? Some rights are in the Constitution, and are enumerated there. Others are not. Therefore, the rights not enumerated belong to the people. Not “the Supreme Court”. In the sections I quoted, the Supreme Court gets jurisdiction over cases arising under the Constitution. Hence the phrase, “arising under this Constitution”. The Ninth Amendment deals with the rest, and those rights belong to the people. And the Tenth Amendment says where all powers not specifically enumerated go - to the states, or the people. The Supreme Court is nowhere mentioned. Therefore, the Ninth Amendment says that certain other, unenumerated rights may exist. Or, they may not - it is perfectly possible to attempt to assert a right that doesn’t exist. Who has the power to determine which are the real rights, and which are not? I’ll give you a hint - it isn’t the federal government. > [@Rhythmdvl](#): > > RTFC. It does not say that the Supreme Court will be the final arbiter of constitutionality. It does give them original jurisdiction over many things, but the power to declare laws unconstitutional was not the original intent of the Framers, and it was not included in the text. I have alreaqdy quoted to you where it is in the text, and explained why. > [@Polycarp](#): > > 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.” And I would look at him right back, and ask him two questions. “To whom do unenumerated rights belong? To the Supreme Court, or to the people?” And he would respond, “To the people”. Then I would ask, “Since the power of determining which are genuine rights and which are not is not assigned to the federal government or the Supreme Court, to whom does that power belong?” And he would respond “To the states, or the people”. And he would be quite correct in both cases. Because that is what the Constitution says. ---
**Author:** ![MichaelQReilly](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@MichaelQReilly](https://boards.straightdope.com/u/MichaelQReilly)\ **Post date:** [November 18, 2008, 7:55pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/64 "2008-11-18T19:55:00Z")
> [@Hamlet](#): > > Baloney. > > _…_ > Federalist #78. > > Judicial review WAS the intent of the founders AND is supported by not only the text of the decision, but also the practice at the time. > > The rest of your post I, in large measure, agree with. I agree with you, I just wanted to add to this discussion that I love when originalists point to the Federalist Papers as conclusive authority of the Founder’s intent. After all, the most famous Federalist Paper rails against the evils of political parties and explains how the Constitution will prevent them. How has that worked out?.. ---
**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, 7:56pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/65 "2008-11-18T19:56:31Z")
> [@Shodan](#): > > “To whom do unenumerated rights belong? To the Supreme Court, or to the people?” > > And he would respond, “To the people”. > > Then I would ask, “Since the power of determining which are genuine rights and which are not is not assigned to the federal government or the Supreme Court, to whom does that power belong?” > > And he would respond “To the states, or the people”. And he would be quite correct in both cases. > > Because that is what the Constitution says. A “right” that can be voted away by the majority is no right at all. Pretty sure Mason would agree. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [November 18, 2008, 8:03pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/66 "2008-11-18T20:03:25Z")
> [@Shodan](#): > > “To whom do unenumerated rights belong? To the Supreme Court, or to the people?” > > And he would respond, “To the people”. > > Then I would ask, “Since the power of determining which are genuine rights and which are not is not assigned to the federal government or the Supreme Court, to whom does that power belong?” > > And he would respond “To the states, or the people”. And he would be quite correct in both cases. > > Because that is what the Constitution says. And how are the people supposed to enforce their access to this right in the face a Congress and an Executive willing to abridge it? ---
**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, 8:12pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/67 "2008-11-18T20:12:16Z")
> [@spoke-](#): > > A “right” that can be voted away by the majority is no right at all. > > Pretty sure Mason would agree And a “right” that can be imposed on the majority by a tyrannical Court is no right, either. > [@Zakalwe](#): > > And how are the people supposed to enforce their access to this right in the face a Congress and an Executive willing to abridge it? > [@](#): > > That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security ---
**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, 8:17pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/68 "2008-11-18T20:17:51Z")
> [@Shodan](#): > > No, they are not. That’s why we refer to them as “unenumerated”. If they were in the Constitution, they wouldn’t be unenumerated; they would be enumerated. See the distinction being drawn? Semantics at best. As I noted in post #48 with a quote from Madison (who wrote the thing) the _intent_ of the 9th Amendment was to note that it would be impossible to enumerate all rights. Further, they felt that some (like you) would latch on to the lack of an enumerated right to inappropriately restrict various freedoms. They knew full well that expecting every right we want to be enumerated was absurd. As such rights exist in the Constitution which are not explicitly listed. Who then is supposed to determine what is there and what is not? Not the people via an Amendment every time they want a right listed. It rests with the Judiciary as noted in **Hamlet’s** quote from the Federalist #78 (above). If the courts deems a right to exist that is not listed (such as privacy) then it is the courts who determine when a given law steps on those rights. Note that they did not even invent privacy into the Constitution. They felt it was implicit in several places already there. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [November 18, 2008, 8:18pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/69 "2008-11-18T20:18:37Z")
> [@Shodan](#): > > And a “right” that can be imposed on the majority by a tyrannical Court is no right, either. How can a right be _imposed_ on the majority? How can any right be imposed on anyone? ---
**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, 8:23pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/70 "2008-11-18T20:23:42Z")
> [@Shodan](#): > > And a “right” that can be imposed on the majority by a tyrannical Court is no right, either. Which is why we have checks and balances. If Congress feels the court went too far they can rewrite the legislation to pass muster or they can seek an Amendment. The Executive can appoint different judges to the court. The Senate can accept or reject those judges. I suppose in the end the court could be wholly ignored. Someone disputed the following quote awhile back and I can’t be arsed to look it up again but IIRC it is close enough to what happened: _"“John Marshall has made his decision; let him enforce it now if he can.”_ --Andrew Jackson (regarding the Indian Removal Act…Jackson ignored the SCOTUS ruling) ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [November 18, 2008, 8:27pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/71 "2008-11-18T20:27:44Z")
**Shodan** So you’re saying that people who felt that they had a right to privacy vis-a-vis access to abortions would have been justified in advocating and attempting the violent overthrow of the United States Government (at least prior to Roe v. Wade)? Does that also apply to gays and lesbians in CA and FL currently? Doesn’t that system seem a bit unworkable to you? ---
**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, 8:38pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/72 "2008-11-18T20:38:05Z")
> [@Shodan](#): > > That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security You do realize that has absolutely zero force of law don’t you? A nifty piece of paper to be sure but for all that using it as support for your arguments of Constitutional law is bogus. You would do as well to quote _Das Kapital_ as that for proposing what people ought to do. Just a matter of taste in the end (although I certainly prefer the Declaration of Independence myself). ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [November 18, 2008, 10:36pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/73 "2008-11-18T22:36:38Z")
For the record, I consider judicial parsing as a whole to be idiotic. Give me Code Law any day, baby! ---
**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, 11:11pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/74 "2008-11-18T23:11:03Z")
> [@Whack-a-Mole](#): > > _"“John Marshall has made his decision; let him enforce it now if he can.”_ --Andrew Jackson (regarding the Indian Removal Act…Jackson ignored the SCOTUS ruling) Sigh. This gets repeated often on these boards, but it’s wrong. The case in question was [Worchester v. Georgia](http://en.wikipedia.org/wiki/Worcester_v._Georgia). It had nothing to do with the Indian Removal Act (at least not directly), but was the appeal of a missionary convicted of living in Cherokee lands without first obtaining a license from the state of Georgia. The Supreme Court ruled that the Cherokee Nation was a distinct community over which Georgia had no sovereignty and within which the laws of Georgia had no force. From wiki: > [@](#): > > In reaction to this decision, President Andrew Jackson has often been quoted as defying the Supreme Court with the words: “John Marshall has made his decision; now let him enforce it!” Arguably because of a legal loophole, he had no grounds for becoming involved unless the Georgia courts formally defied the Supreme Court. That did not happen since Georgia simply ignored the ruling and refused to release Worcester from prison. **What Jackson actually said was that “the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” Jackson’s opponents criticized him for failing to act against Georgia, but even if he had wanted to intervene—and he did not—it is questionable whether he had any legal authority to do so.** /hijack ---
**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, 11:22pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/75 "2008-11-18T23:22:44Z")
> [@spoke-](#): > > Sigh. This gets repeated often on these boards, but it’s wrong. The case in question was [Worchester v. Georgia](http://en.wikipedia.org/wiki/Worcester_v._Georgia). It had nothing to do with the Indian Removal Act (at least not directly), but was the appeal of a missionary convicted of living in Cherokee lands without first obtaining a license from the state of Georgia. The Supreme Court ruled that the Cherokee Nation was a distinct community over which Georgia had no sovereignty and within which the laws of Georgia had no force. I said I thought I had it wrong but it remains that a SCOTUS ruling was ignored. Quoting the next part from your link: > [@](#): > > Perhaps fearing the possibility of a showdown between the Supreme Court and the Executive, and realizing the real likelihood of Jackson refusing to adhere to the Court’s pro-Cherokee decision, the Justices did not follow the standard procedure of requiring federal marshals to carry out the decision.[3] In doing so, the Supreme Court implicitly permitted Andrew Jackson not to carry out the decision, thus avoiding the possibility of a political conflict between two branches, while also retaining the pro-Cherokee decision of Worcester as good precedent for subsequent cases and presidents.[4] > > SOURCE: [Worcester v. Georgia - Wikipedia](http://en.wikipedia.org/wiki/Worcester_v._Georgia) ---
**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, 11:32pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/76 "2008-11-18T23:32:13Z")
I’m not trying to pick a fight. (Note that I’m on your side as to the subject of this thread.) I’m just correcting the record, as per the prime directive of _The Straight Dope_. 🆒 Jackson, by the way, didn’t ignore the decision. Neither he nor the United States were parties to the case, and the decision gave him no task to perform. (Hence his comment that it arrived “still-born.”) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 19, 2008, 2:26pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/77 "2008-11-19T14:26:22Z")
I guess asking **Shodan** for the third time to provide the resoning behind his idea of the obviousness of what was intended to be covered by the First Amendment would be an exercise in futility… ---
**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 19, 2008, 2:38pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/78 "2008-11-19T14:38:04Z")
> [@villa](#): > > I guess asking **Shodan** for the third time to provide the resoning behind his idea of the obviousness of what was intended to be covered by the First Amendment would be an exercise in futility… [I tried to warn you.](http://boards.straightdope.com/sdmb/showpost.php?p=10463216&postcount=43) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 19, 2008, 2:43pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/79 "2008-11-19T14:43:01Z")
Well I was hoping 10th Amendment tripe and 1st Amendment tripe would have a different flavor. I guess stomach lining is stomach lining however you slice it. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [November 19, 2008, 3:01pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/80 "2008-11-19T15:01:18Z")
> [@Shodan](#): > > And a “right” that can be imposed on the majority by a tyrannical Court is no right, either. Could you provide an example, even a hypothetical one, of a right being imposed? [Previous page](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169.md?page=3) [Next page](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169.md?page=5)