Is the Constitution a 'living breathing' document?

I’ve long believed that one of the main issues with the Constitution, and the reason that trying to figure out how to interpret it is such a mess, is because the Constitution and the Bill of Rights conflated several somewhat incompatible ideas about government and rights. On one hand, you have the young America’s background with the common law were judges could interpret and change the law if need be, leading to the idea of judicial review even though the Constitution never mentioned it. You also had the idea of natural rights, which as are was expressed, in the Declaration of Independence, “self evident” and not in need of writing down. On the other hand, you have the Constitution, which purports to create a limited federal government and the Bill of Rights which is a more Continental style codified list of positive rights (although it is expressly stated that it isn’t an exclusive list). Throw into all this the embryonic Parliamentary idea that as the representative of the people, the legislature was more or less free to do whatever it wanted when it acted within its bounds. So right off the bat you have a government that incorporates a bunch of ideas that don’t necessarily coexist that well together.

Then add in historical developments. After the Civil War, new amendments apply parts of the Constitution to the states. Then, in response to the development of modern economies, the role of the Federal government needs to expand immeasurably. So either the Constitution needs to be amended, which really difficult, it has to be scrapped, or it has to find a way to accommodate the changes. It first the court doesn’t want to let the constitution change, without an amendment, so it goes back to natural rights to block legislation, and in the process tarnishes an idea that had grown old anyway. So in response to pressure on that it it needs to find a way to accommodate the changes. Well, the post Civil War amendments might be one way, but that looks an awful lot like the Court is reading stuff into what was supposed to be a limiting document. It could have gone with a common law/natural rights/9th amendment route, but it had just discredited that route. So it went the other way.

To sum up then, the Constitution developed out of an ideological muddle and is some ways at cross purposes to itself. On top of that historical developments and necessity have forced the court to interpret it in ways that are also an ideological muddle. So where does that leave us? Who knows; I’m not a big fan of the Supreme Court just making shit up, but really, I think there is as much of a historical basis for doing that as there is for strict constructionist, regardless of what Federalist Society types would have you believe.


Cite for the section that says the Supreme Court will determine constitutionality?

Still accept their rulings as law? Then you certainly can’t subscribe to an originalist/textualist point of view. Welcome to the world of a living, breathing document.

If you’re not willing to talk about rescinding the court’s power through an act of Congress and limiting them to their original jurisdiction, than you can’t do much more than handwave and pretend you have a salient point to make.

If you insist on having something to occupy yourself with, please point out the “Definitions” section of the constitution where such things as due process, equal protection, etc. are spelled out with sufficient clarity.

Oh, and please don’t pretend that just because someone can see that strict interpretaionists aren’t wearing any clothes that that means they favor completely open, wily-nily Constitutional interpretation.

Jack Balkin covers this whole issue well in this paper with none of the usual false dichotomies about ex nihilo judicial activism or original intent. Abstract provided below:

I agree packing the court is not a good thing.

I just do not have sufficient legal training to say whether the government can meddle in something that was created in the Constitution in this fashion is all. If the FFs wanted to specify a number of justices for the court then they would have. I cannot believe it did not occur to them and if we go with the Feds only have those rights expressly granted to them from whence comes the idea they can fiddle with this?

Just playing Devil’s Advocate to show the notion of an un-interpreted, it only says what is explicitly written, Constitution is a lousy idea.

(Emphasis added)

Have a look at Genesis 19:5…

“And they called unto Lot, and said unto him, Where are the men which came in to thee this night? Bring them out unto us, that we may know them.”

English in the 17th century (King James Version)

“They called to Lot, Where are the men who came to you tonight? Bring them out to us so that we can have sex with them.”

English Today (New International Version)

The President “shall nominate, and by and with the advise and consent of the Senate, shall appoint … judges of the Supreme Court.” U.S. Const. Art. II, Section 2.

Both elected branches are given a key role here. Given that the make up of the court is specifically not determined in the constitution, and that the other two branches appoint the judges, they should determine how many judges are enough.

To me that does not imply any hard number. If the Senate wants to refuse to appoint another judge for whatever reason then fine. But let’s say it is Obama with a 60 seat, filibuster proof, Dem majority in the Senate. Now let’s say he is tired of the conservative bent on the court and nominates four more liberal judges. We can only hope the Senate stands on principle and not politics to stop that but I’d not hold my breath.

Federal law prevents this but I just do not know if that is constitutional (although the SCOTUS I suppose would be the one to decide and I do not see them opting for more judges to dilute their individual power).

Just thinking out loud.

Oh I agree. Relying on Congress generally not to abandon its responsibilities and sacrifice power to an Imperial Presidency has been a faint hope since the 1930s at least.

Which is why, at the end, the buck stops with the people. Either vote in people who will perform their constitutional duties, accept what happens if you don’t, or withdraw consent from the government.

The government has power because the people allow it to have power, in the end. And SCOTUS has power because the elected branches permit it to have power. That’s why it often chooses not to overstep, out of fear of what the response would be, whether that is the Switch in Time, or recognizing that it does not have the bottom line power to force the elected branches to do certain unpopular things.

I don’t think that anyone doesn’t accept that, as circumstances, technology, or society change well beyond that envisioned within the Constitution itself, its principles must be adapted to new issues. However, I, and many others, believe that judges have a bad habit of overstepping the bounds when they really, really want to do so. That kind of bias is hard to resist.

And it is very easy to slip over the line from “I must apply the principles” to “I know what is right and therefore the principles must be what I want.” The Consitution is what it says it is, nothing more. Ity isn’t a guide to morality, and it doesn’t say that things are or ought to be fair, or even what ought to be at all. Its primary purpose is to set the limits on what the government can do, or what states can do.

No justice ever admits he or she is inventing anything new. The entire point is to claim that all you’re doing is applying established precedents. It’s only the justices whose decisions you disagree with who are activists.

Okay, tell me right here, in clear, unambiguous English, the answers to the following questions:

  1. Exactly what recognition does a state have to give to the magisterial acts and judgments of another state? If not full and absolute recognition, where in the Constitution may I find the authorization for a state to limit it?

  2. Where may I find authorization for a separate Air Force?

  3. Are there any circumstances in which Congress may limit freedom of speech or of the press? If so, what are they?

  4. What does “respecting an establishment of religion” mean? How far can Congress go in recognizing a given religion before it hits this barrier?

  5. What limits if any may Congress put on the free exercise of religion? What happens if one person’s right to free exercise conflicts with another’s?

  6. What exactly are unreasonable searches and seizures? Where may I find this defined? May a policeman do whatever he likes as long as he doesn’t characterize it as a search or seizure?

  7. What is “probable cause”? What are its limits? Where in the Constitution can I find this defined?

  8. What is due process of law? Where can I find it defined? What are its limits?

  9. The Constitution provides that no person shall be compelled in any criminal case to be a witness against himself? What happens if someone does attempt to compel him?

  10. What is a speedy trial? What happens if someone doesn’t get one?

  11. What constitutes cruel and unusual punishment? What are the limits to this prohibition? Where in the Constitution can I find this defined?

  12. What are the privileges and immunities of citizens of the United States? Where can I find a list? What happens if a state tries to abridge them?

  13. What constitutes the equal protection of the laws? What happens if someone is denied it?

  14. What does the Ninth Amendment mean, and where can I find out what these unenumerated rights are?

  15. What exactly does it mean that the U.S. Constitution is the supreme law of the land? Does your understanding of the Tenth Amendment override that?

  16. If the Constitution is not a “living document” that is applied to new circumstances creatively with due regard for precedent, then how do you know that the answers you have given are the ones that would have been given when the Constitution and the relevant amendments were adopted?

I think in this thread we are talking about two different ideas of a “living” document:

  1. Intrepreting understood concepts to apply to modern situations (e.g. Freedom of speech on the Internet, authorization for space travel, etc.) when the framers couldn’t have addressed such things.

  2. 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.

I think most people recognize that #1 is the duty of judges. I would hope that most people think that #2 is what activist judges do.

Plessy v. Ferguson or Brown v. Board of Education: Which one is the “activist” ruling?

No, read it again please. No limits on rights have been established; only limits on the powers of the federal government.

And how exactly do we decide which are those rights? The power of establishing new rights is not assigned to the federal government. Therefore, it belongs to the states, or the people.QED.

Roe v. Wade is the most obvious example of recent years.

Roe found that the states could not regulate abortion at all during the first two trimesters of pregnancy, and found that the Supreme Court was the final arbiter of abortion law. No clause exists in the Constitution assigning that power to the Supreme Court or the federal government. Thus this was illegitimate. Indeed, the court did not even bother to pretend there was any such clause, basing its decision on an emanation from another right to privacy, which also does not exist in the Constitution (nor did the court pretend it did).

So there’s an example. The power to regulate abortion is an unenumerated power. Therefore. it belongs to the states, or the people, not to the Supreme Court. The court simply ignored the Tenth Amendment, and grabbed the power for itself.

And Polycarp, nice try, but you may want to consider the difference between saying “the Supreme Court interprets the Constitution” and “the Constitution says whatever I want it to”.

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.

If instead of being bound by the constitution, they just do what is “right” then we might as well do away with the other two branches of government and ask the nine Justices what is “good” or “right” in a particular situation.

Take my questions in post #16 then.

I’d also be curious to hear your answer on which was the activist court…the one in Plessy v. Ferguson or the one in Brown v. Board of Education?

No. This is just a bit of gassy rhetoric that liberals use whenever they want to ignore the Constitution.

While it may have been a nifty rhetorical device “liberal” is way off base. More likely you disagree with liberal interpretations and favor conservative interpretations which makes the whole thing subjective.

Obviously limits on rights were established, else you wouldn’t find Roe v. Wade so upsetting. Where I see unlimited rights which we give up to allow a government to function, you see rights which the government must grant.

There aren’t “new rights.” “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Seems clear.

What does, the power to create “new rights”?

Interesting. So, for example, the third, fourth, and fifth amendments, taken together, don’t imply to you a sort of “right to privacy”? You can’t enter my house, can’t use or inspect my property without reason, can’t force me to reveal information… that’s nothing like privacy? It seems like a pretty awesome right of privacy. I’m interested to wonder what additional clause you think should be added to guarantee a right to privacy, and what specific practical effects it would have.

Nonsense. For other rights to obtain, some kind of privacy must exist. It’s like the exclusionary rule. What gives the court system the power to ignore evidence? Nothing, by your standards; and by your standards we’d have no Fourth Amendment in practice.

No, you aren’t reading. No limits on rights, limits on the federal government’s powers.

Okay, what rights, and how do we know they exist? And why is this right to regulate abortion retained by the Supreme Court, instead of by the people, as the Ninth states?

Yes, that’s what I said.

With reference to abortion? No, unless you can show somehow that the Founding Fathers intended abortion to be included. 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.

It’s nothing like abortion.

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.