With regard to the OP’s question, this is a rather significant distinction. The OP wants to know why we keep referring to the amendments instead of referring to the actual language of the “main text.” Without making this distinction, you can’t meaningfully respond to the question.
Exapno, it is not clear to me what point you’re making. If you’re saying that the text of the original Constitution has been changed in any way (as opposed to having Amendments tacked on at the end seriatem), you’re wrong.
If you’re saying that it doesn’t matter whether the Amendments are included seriatem at the end of integrated into the text and that anyone who wants to can read the Constitution either way, you’re dead wrong.
And if you’re agreeing with ascenray (which you should, because he’s right), you’re being a dick about it.
Every single word in the original Constitiution as ratified in 1789 is still there, in exactly the same place as it was 200+ years ago. Through the amendment process, the Constitution has gotten significantly longer, but not one jot, not one iota of original text has been deleted, modified, or revised. (Well, except commas sometimes – they frikkin’ loved commas back then.)
You shouldn’t just take my word for it. (Well, you should, 'cuz I’m right, but whatever.) Thinking logically about the nature of a Constitution (ours, anyway), it becomes obvious that you can’t just use Amendments to revise original text like you would in a statute. That’s because the exact influence an Amendment has is not fully understood at the time of its ratification. The 1st A. is over 200 years old, and the 14th well over a century, and as the OP’s confusion illustrates, we’re still dickering over what they mean, and what parts of prior-existing text they superceded. Had someone bluepencilled them in at ratification instead of just adding the Amendments to the end, it would have been impossible for him to make all the appropriate changes, and nothing but the appropriate changes.
The page at the link provided is nice in that someone has made an effort to signal what parts of the text have had their effects revised by later additions. But the text itself has suffered no revision whatsoever – merely textual additions.
–Cliffy
OK, now that that emminently necessary pile-on is over, back to the OP.
While your confusion is understandable for the reasons noted above, there is still plenty of litigation and tizzy over matters in the original text. For instance, do a search in the SDMB on “Commerce Clause” and I’d wager you get plenty of hits. That Clause is in Art. I of the original Constitution, and it’s still one of the most hotly-contested clauses today.
–Cliffy
To add on (heh) to what Cliffy said: one reason you hear more about the amendments than the original text in public discourse is that the amendments tend to be “sexier,” especially the Bill of Rights and the 14th Amendment. The amendments contain (or don’t contain, depending on who you ask) many protections of individual liberties that people can relate to more easily.
Most everybody knows the holdings of Roe v. Wade, Miranda v. Arizona, and Brown v. Board of Education, and can get teary eyed or red faced discussing what they mean to the right to privacy, due process, or equal protection under the law. On the other hand, it takes a real wonk to get worked up about Dean Milk v. Madison and its implications regarding the dormant commerce clause, or Clinton v. New York and the line item veto.
I wouldn’t use the term sacrosact, although I think I know what you mean (more legally binding). Simply put, we recognize that we may have gotten it wrong, and allow for the possibility of correcting those wrongs. The original constitution recognized slavery as a legal institution. Good think we changed that, no?
We had a debate about this once and I think the only part of the constution that doesn’t appear to be amendable, at least in the standard sense is (the emphasized part):
That phrase seems to imply that the amendment would have to be approved unanimously, or that each state had a veto power over changes to that one feature of the Senate (depending on how you look at it).
Otherwise, we could vote in an amendment tomorrow to change any or all of it, even if that isn’t likely to happen.
Good grief. Of course the original text of the first seven articles is not technically changed by later amendments, and of course the historic rendition of the text of is importance.
But look at the OP, which asked:
The answer to that is exactly what I said. We treat the changes as important because they render the original wording of the text as dead as a matter of the law of the land. It is inoperative, to quote a certain former Press Secretary.
It is not merely a matter of semantics to claim that the text has been changed. The legal effect of the amendments is indeed the same as would be the case in the statuary style of striking out the original words and interpolating in italics the new text.
I find this a crucial point when any attempt to interpret the Constitution arises. Reading the original seven articles is not sufficient, because they are misleading as to the state of the law today, in its current reading. They must be read as if some of the words have been stricken and replaced by new words. To say that this is not a change or alteration of the original is pedantic pettifogging in the extreme.
That’s the beauty of it. It’s a living document, and while making changes is an intentionally difficult process, the original framers envisioned that future changes would be necessary. They outlined the process by which that could happen.
Although I’m not American, I’m still embarrassed to have to ask, ‘what state is that’?
North Carolina, IIRC.
Bull. Shit.
You are wrong that constitutional amendments change the law in the same way as statutory strikethroughs do. Because the precise effects of strikethroughs are easy to interpret; amendments are not. Statute said dude had to carry the gun, new statute says dude had to brandish the gun? OK, I know exactly what that change means. And in the case of, say, the 12th A., you could probably do something like that if you wanted. But in most of the Amendments you cannot. They certainly change the law, but they most assuredly do not do so in the manner of a strikethrough because their effects are far-ranging and typically not fully understood at the time of ratification. Now you may choose to engage of some pettifogging of your own and say that’s a failure of imagination, not a difference of legal effect. But legal institutions act through human hands and minds; moreover, the concommitant expansion of the field of judicial interpretation is a change of kind, not merely degree.
Your high-falutin’ “distinction without a difference” canard notwithstanding, ascenray made an accurate statement of fact. You declaimed that it was the “opposite of reality.” I am by no means in a position to decry your hubris on this board because a quick perusal of legal threads illustrates that “high dudgeon” is my middle name. But typically when I bitchslap the ignorance out of someone, I like to make sure that I’m right beforehand.
To sum up: while you are correct that most Articles of the Constitution (tho’ certainly not most Clauses) have provisions superceded by later-ratified amendments, no one ever said different. We said the text hasn’t changed. And the text has not frikkin’ changed. There is, however, a legitimate, “distinctive” (to use your idiom) reason why constitutional amendments are not written as strikethroughs, and I think that I’ve explained it enough times already. Furthermore, regardless of what claims you might make as to what your posts really said, you flat-out claimed that ascenray was spreading falsehoods, while he was singing only truth. Given that this is ultimately a thread started by someone who had very little experience with the U.S. Constitution, such fine hair-splitting (even if you were right) would be detrimental to the OP’s understanding of the topic at hand.
–Cliffy
Hoo hoo. Don’t tell that to Justice Scalia. He might hit 'cha.
Or Clarence Thomas, either. I’m not gonna go into what he might do. :eek:
[QUOTE=JPen]
Hoo hoo. Don’t tell that to Justice Scalia. He might hit 'cha. /QUOTE]
Or at least call ya a complete and utter fool. Or was that idiot? Anyway he was picking up a speaking fee at Catholic U. of P.R. Law School last year and laid down that beaut on the audience.
Cliffy, please note that you are in GQ. Please be civil in your replies.
Thanks.
-xash
General Questions Moderator
Hmm…I think JR saying that **Scalia **would call you a complete and utter fool. I’m pretty sure he wasn’t directing that at me. Or maybe he was.
Without arguing with anything written so far, here are a couple of examples of just how tough it is to get an amendment passed and ratified.
According to a book called The Godless Constitution, more than a dozen attempts were made to change the Constitution to declare that the US is a Christian nation. All failed.
I’ve read that more than a hundred tries to abolish the practice of electing the president through the electoral college have all failed.
(I have lowballed the number of attempts, because I have a few things to do today other than chase down the numbers.) I know, lazy slacker and all that. 
He meant Cliffy’s “BS” comment
Oh, gee. I’m the idiot, then.
Since this is GQ, you need to provide evidence that either of them denounce in any way whatsoever the amendment process as outlined in the constitution. That’s what we’re talking about, as I’m sure you know. Surely you’re not taking political pot shots in this forum, right?
Nope, that comment was not addressing the amendment process or taking political pot shots, but rather describing the three main schools of constitutional interpretation, to wit:
-
Textualist: The actual literal words of the text are exactly what it means, no more and no less. Though in the present day textualism is associated with the conservative movement, probably the greatest single exponent of it was Hugo L. Black, with his comment, “When the Constitution says that ‘Congress shall make no law’ [limiting freedom of speech, in the context he was citing it], it means that Congress shall make no law.”
-
Original Intent: Whatever the Founding Fathers meant (or the Congresses which passed the various amendments) is precisely what it should be understood to mean. This is discoverable from debates, the Federalist Papers, etc. Adhere strictly to what those who wrote it meant by what they wrote.
-
Living Constitution: The Founding Fathers wrote a constitution with the intent that it would survive and be made adaptable to changing times. Construe the meaning of the relevant clause or section, not by the literal words of the text nor by the original intent of the writers, but by what concept was being striven for. “Interstate commerce” does not necessarily mean only “that which is shipped across state lines” but the web of economic transactions that comprises the American economy; “cruel and unusual punishment” does not mean punishment that meets the dictionary definitions of “cruel” and “unusual” nor what may have been deemed cruel and unusual in 1789, but rather the idea that what Americans consider to be cruel and unusual is what is forbidden, as true today as it was in 1789, even though the actual identification of specific punishments in the public mind as “cruel and unusual” may have changed over the years. Likewise, the Army is entitled to build tanks and the Navy submarines, and the country to have an Air Force, because the intent is not to specifically authorize an Army or a Navy equipped as might have been conceived in 1789, but rather to provide for the national defense.
Actually, Junior Mod, he was referring to Scalia’s well-documented derision for the “living Constitution” theory. While it might be reasonable to request a cite for the proposition that Scalia might resort to physical violence in response to an assertion of the theory, that Scalia has publicly and repeatedly stated that he opposes the theory is factually true.
I leave it as an exercise for the reader to research Thomas’ public statements on the theory.