# 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:** 19\ **Page:** 7
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 21, 2008, 12:04am UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/121 "2008-11-21T00:04:56Z")
> [@Hamlet](#): > > I think the only real “debate” going on is the age old question: Jelly Donuts or Megan Fox? Or? **OR???** I am so sick of you strict constructionalists denying me the right to Megan Fox AND donuts. Or Megan Fox wearing a bathing suit made of donuts. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [November 21, 2008, 12:11am UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/122 "2008-11-21T00:11:34Z")
> [@villa](#): > > Or? **OR???** > > I am so sick of you strict constructionalists denying me the right to Megan Fox AND donuts. Or Megan Fox wearing a bathing suit made of donuts. Now here’s someone Obama ought to appoint to the Court. ---
**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 21, 2008, 12:24am UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/123 "2008-11-21T00:24:13Z")
> [@villa](#): > > Or? **OR???** > > I am so sick of you strict constructionalists denying me the right to Megan Fox AND donuts. Or Megan Fox wearing a bathing suit made of donuts. _[sub]insert comment of questionable taste about eating Megan Fox and letting the bathing suit take the position on the Supreme Court here.[/sub]_ ---
**Author:** ![Biffy\_the\_Elephant\_Shrew](https://avatars.discourse-cdn.com/v4/letter/b/e47c2d/32.png) [@Biffy\_the\_Elephant\_Shrew](https://boards.straightdope.com/u/Biffy_the_Elephant_Shrew)\ **Post date:** [November 21, 2008, 12:29am UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/124 "2008-11-21T00:29:20Z")
If so, I am horrified that it is sealed in an airtight case in the National Archives. ---
**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 21, 2008, 3:43am UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/125 "2008-11-21T03:43:08Z")
> [@villa](#): > > Or? **OR???** > > I am so sick of you strict constructionalists denying me the right to Megan Fox AND donuts. Or Megan Fox wearing a bathing suit made of donuts. Ack! Wow…just when you think something is goofy you realize there is reality behind it. Note the particulars in this URL: [Private Site](http://jellydonut.wordpress.com/category/megan-fox/) 😃 ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 21, 2008, 5:27pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/126 "2008-11-21T17:27:05Z")
> [@villa](#): > > My good God! The Tenth does NOT talk about rights. No amount of hand waving will make it. It talks about POWERS. And, as I have mentioned ten or twelve times, the POWERS include the POWER to determine what are rights and what are not. Since the POWER to determine what is a right and what is not is not assigned to the federal government, the POWER belongs to the states, or the people. > [@whorfin](#): > > How, exactly, does the tenth do that? Please be clear. When you say “the states, or the people,” who do they petition to be protected under a right of ALL the people that is unenumerated in the constitution? How does the Tenth do that? By saying so. If the states or the people want a new right, they can amend the Constitution (as I mentioned a time or fifteen). They can also pass laws. Were you under the impression that only the Supreme Court could make up rights? > [@](#): > > It’s not clear what you mean by this. If you mean the Court has taken it upon itself to interpret the constitution to determine what the powers of the federal government are, I’d agree. It seems you do to. If by “interpret” you mean “read for comprehension, taking into consideration the expressed intent of the Founding Fathers”, sure. > [@](#): > > So, what is wrong with the supreme court interpreting the constitution, including the ninth and tenth amendments, to figure out what it protects, and then applying that? I’d say nothing. Then you haven’t read the Tenth Amendment, nor the quote from James Madison supplied above. Madison says rather clearly that the purpose of the Ninth Amendment is to prevent the misconception that unenumerated rights are under the control of the federal government; > [@](#): > > What those three words mean is that that very nice quote you have means NOTHING in terms of binding precedent about constitutional interpretation. It means Scalia disagree’s with the court’s HOLDING that there is a fundamental right of parents to direct the upbringing of their children that is protected by the due process clause of the Fourteenth Amendment. And, since we were talking about the Ninth Amendment, the purpose of the quote was to establish that what was being claimed is wrong. The Ninth Amendment is not a source of rights. That’s what Scalia said. That’s what most scholars say. > [@](#): > > t is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. [Cite.](http://caselaw.lp.findlaw.com/data/constitution/amendment09/) > [@](#): > > I’d myself rather you didn’t assert that I said things that I have not. The supreme court, as all federal and state government officials, are bound by the constitution. Not if they can violate it at will. > [@](#): > > Bet you can’t find a case where the supreme court “creates” a right without citing enumerated rights under the constitution. _sigh_. We already covered this Roe v. Wade found that the Supreme Court had the power to regulate abortion, based on an emanation from a right to privacy. Please cut and paste the words “abortion” or “privacy” in the Constitution. > [@](#): > > When Madison fears a right being “assigned to the federal government”, he fears the Court saying that the federal government can control it. You mean like the right to privacy? IOW, Roe is doing exactly what Madison wanted to prevent with the Ninth Amendment. This right to abortion is (to say the least) an unenumerated right. Nonetheless, in direct violation of both the Ninth and Tenth Amendments, the Court took on itself a power not assigned to the federal government (the power to regulate abortion) and created a right (to privacy). The guy who wrote the Ninth did so to prevent the general government from taking unenumerated rights into its control. In Roe, the general government took an unenumerated right under its control. > [@](#): > > The bill of rights sets out things that the federal government can’t control. Don’t be absurd - of course they can control it. All that is necessary is to “interpret” the Constitution to say whatever you want it to. Oh, and **Hamlet**? I have lost interest in posting answers to your questions over and over and over and have you ignore it, and pretend that answers you cannot refute don’t exist. If you can’t or won’t read, I can’t help you, and I can’t be bothered to try. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 21, 2008, 5:32pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/127 "2008-11-21T17:32:29Z")
> [@Shodan](#): > > And, as I have mentioned ten or twelve times, the POWERS include the POWER to determine what are rights and what are not. Since the POWER to determine what is a right and what is not is not assigned to the federal government, the POWER belongs to the states, or the people. You really don’t have any background or training in the interpretation of laws and constitutions, do you? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 21, 2008, 5:35pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/128 "2008-11-21T17:35:35Z")
> [@Shodan](#): > > Roe v. Wade found that the Supreme Court had the power to regulate abortion, based on an emanation from a right to privacy. No it didn’t. Have you ever even read _Roe_? That’s another mistake you are making about it. In _Roe_, the Supreme Court found that states did not have the power to regulate first trimester abortions. They did not find themselves to have the power to regulate it. ---
**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 21, 2008, 5:42pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/129 "2008-11-21T17:42:32Z")
> [@Shodan](#): > > Oh, and **Hamlet**? I have lost interest in posting answers to your questions over and over and over and have you ignore it, and pretend that answers you cannot refute don’t exist. There you go again with your li… misrepresentations. You’ve NEVER answered my questions. You’ve done what you always do, repeat the same crap over and over and over and pretend it means something. Just like your last post. You ignore points that prove you wrong, you don’t counter any arguments, you don’t answer questions. In short, you don’t engage in honest debate. This thread, just like our last one, and the one before that, and any thread you trot out your idiotic 10th Amendment argument. It’s what you do. It’s what you are. It is SHODAN. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [November 21, 2008, 5:56pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/130 "2008-11-21T17:56:44Z")
> [@villa](#): > > No it didn’t. Have you ever even read _Roe_? That’s another mistake you are making about it. > > In _Roe_, the Supreme Court found that states did not have the power to regulate first trimester abortions. They did not find themselves to have the power to regulate it. He hasn’t read roe. Had he done so, he’d find the Court cites a large number of enumerated rights in getting to the conclusion that a right of “privacy” exists. > **[Jane ROE, et al., Appellants, v. Henry WADE.](https://www.law.cornell.edu/supremecourt/text/410/113)** [QUOTE=harry blackmun] The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the **First Amendment,** Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the **Fourth and Fifth Amendments,** Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 484-485; in the **Ninth Amendment** , id. at 486 (Goldberg, J., concurring); or in the **concept of liberty guaranteed by the first section of the Fourteenth Amendment,** see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460, 463-465 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra. This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. [/QUOTE] Just like there’s no explicit protection for storing arms in the constitution-just “bearing” them. So by Shodan’s rationale, there’s no protection to have guns unless you’re actually carrying them. I’m done with this. I’ve tried to discuss this reasonably. I’m not doing it with someone who can’t be bothered to read the things they cite. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 21, 2008, 5:58pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/131 "2008-11-21T17:58:22Z")
> [@villa](#): > > No it didn’t. Have you ever even read _Roe_? That’s another mistake you are making about it. No, it’s correct. > [@](#): > > The decision established a system of trimesters that attempted to balance the state’s legitimate interests against the abortion right. The Court ruled that the state cannot restrict a woman’s right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester “in ways that are reasonably related to maternal health”, and the state can choose to restrict or proscribe abortion as it sees fit during the third trimester when the fetus is viable (“except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”). [regulate: 1. To dictate policy. 2. To control or direct according to rule, principle, or law.]([regulate - Wiktionary, the free dictionary](http://en.wiktionary.org/wiki/regulate)) > [@](#): > > You really don’t have any background or training in the interpretation of laws and constitutions, do you? I can read posts even if they don’t agree with me. Would that everyone would do the same. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 21, 2008, 6:05pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/132 "2008-11-21T18:05:39Z")
> [@whorfin](#): > > Just like there’s no explicit protection for storing arms in the constitution-just “bearing” them. So by Shodan’s rationale, there’s no protection to have guns unless you’re actually carrying them. You really haven’t read the Constitution, have you? > [@](#): > > A well regulated militia, being necessary to the security of a free state, the right of the people **to keep** and bear arms, shall not be infringed. > [@](#): > > I’m done with this. I guess I shouldn’t be surprised. If you won’t read the Ninth and Tenth, the Second is not going to go any better. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [November 21, 2008, 6:07pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/133 "2008-11-21T18:07:34Z")
> [@Shodan](#): > > No, it’s correct. Your quote (Wiki, maybe? Try reading the case. You might even learn something) belies this. It very clearly states that the decision took control away from the states. It didnt’ give it to the feds. It said “neither can regulate during first trimester, neither can ban during second”. That’s not giving the federal government a power. That’s saying neither the feds nor the states have that power-i.e. giving a right to the people. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [November 21, 2008, 6:09pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/134 "2008-11-21T18:09:12Z")
> [@Shodan](#): > > You really haven’t read the Constitution, have you?I guess I shouldn’t be surprised. If you won’t read the Ninth and Tenth, the Second is not going to go any better. Fine, bad example. But the point remains true. A better example would be:is the second amendment limited to the originalist definition of “arms”? ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [November 21, 2008, 6:12pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/135 "2008-11-21T18:12:20Z")
> [@Shodan](#): > > You really haven’t read the Constitution, have you?I guess I shouldn’t be surprised. If you won’t read the Ninth and Tenth, the Second is not going to go any better. For the record: You haven’t read Roe. You haven’t read Troxel v. Granville, which you brought up. I’ve read the constitution thoroughly. I’ve also (though IANAL), read many of the important cases interpreting it, including those under the ninth and tenth (interesting fact-there are only about two tenth amendment cases in the Corut in the last fifty years. Look at New York v. U.S. for one). Bottom line, If you want to argue with grown-ups, back up your arguments. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 21, 2008, 6:23pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/136 "2008-11-21T18:23:19Z")
> [@Shodan](#): > > No, it’s correct. So you are providing me with an unnamed source to tell me about the decision. Well, you are flat out wrong. _Roe_ is the Supreme Court determining when the states may regulate abortion. Saying “states may not regulate first trimester abortions” (despite your error that I pointed out earlier when you claimed it said first two trimesters, an error you have neither acknowledged nor withdrawn) is a different thing than regulating something. Try going to the decision. It is available free from many places. Read it. Then come back and show me where the Supreme Court is regulating abortion, as opposed to determining where others can, and cannot regulate it. And try not playing silly dictionary games. Regulate means something specific in a legal sense. At least when Fat Tony lives by the dictionary, he has the legal training to at least attempt to back up what he says. ---
**Author:** ![MichaelQReilly](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@MichaelQReilly](https://boards.straightdope.com/u/MichaelQReilly)\ **Post date:** [November 21, 2008, 8:24pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/137 "2008-11-21T20:24:31Z")
> [@Shodan](#): > > And, since we were talking about the Ninth Amendment, the purpose of the quote was to establish that what was being claimed is wrong. The Ninth Amendment is not a source of rights. That’s what Scalia said. That’s what most scholars say. I will grant you that you are correct in that there has been a strong movement that favors interpreting the 9th that way, its just that they happen to be wrong. A plain reading of the amendment, as well as the historical fact that it was included to assuage the fear of anti-Federalists who feared exactly what you are arguing proves this rather unequivocably in my view. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [November 21, 2008, 8:29pm UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/138 "2008-11-21T20:29:29Z")
Wow. This thread is gruesome. I mean, it grew some. It looks like I’ve got some reading to catch up with. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [November 22, 2008, 2:45am UTC](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169/139 "2008-11-22T02:45:24Z")
> [@Hamlet](#): > > There you go again with your li… misrepresentations. > [@whorfin](#): > > Bottom line, If you want to argue with grown-ups, back up your arguments. It is not appropriate in ths Forum to say that another postrer has lied or to suggest that another poster has not yet reached maturity. Knock it off. [/Modding] [Previous page](https://boards.straightdope.com/t/is-the-constitution-a-living-breathing-document/473169.md?page=6)