Constitution Discussion...Living or Not?

[concealed]

Here is an interesting article I found with my web crawler:

The Constitution of the United States, a Living Document?

The United States has historically served as a shining example of Rule by Law in the world.

America is the first nation state openly to be predicated on the concept that a nation should be established under the proposition that all men are created equal, all should enjoy equal opportunities and equal protection under the Law, and that it is the primary duty of the State to protect these God-given rights to its Citizens.

In the Declaration of Independence, that basic premise looks like this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --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.

In all other nation states existant at that time, rights were defined and controlled by a certain class of peoples. The presumption was that this class alone was competent to determine whether certain actions were acceptable by all people, and to decide what rights (pick and choose according to the prejudices of the ruling class) should be 'granted' to the people who were not members of the ruling class.

The United States of America has prospered during the last part of the 18th Century ... since the Constitution of the United States was proposed and accepted as Law.

The Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America; the Federal Government of the United States; and all the State & local governments and Territorial Administrative bodies contained therein. It provides the framework for the organization of the United States Government. The document defines the three main branches of the government: The legislative branch with a bicameral Congress, an executive branch led by the President, and a judicial branch headed by the Supreme Court. Besides providing for the organization of these branches, the Constitution carefully outlines which powers each branch may exercise. It also reserves numerous rights for the individual states, thereby establishing the United States' federal system of government. It is the shortest and oldest written constitution of any major sovereign state.


A Lesson in Civics:
Part of our prosperity was because the principle of Capitalism was protected: it encouraged economic growth, and it also encouraged abuse of the freedoms which were central to the basic philosophy of a Free People in a Free Nation. At the same time, as the Citizens of the country learned that some controls were necessary to prevent these abuses, the laws were changed (by an established Legislature) to protect the Rights of its Citizens while continuing to encourage economic growth, and prosperity not only for capitalistic entrepreneurs but for the common working man.

Much of this growth was painful: national expansion resulted in abuse of Native Americans; the desire for 'cheap labor' encouraged the Slave Trade; as more immigrants reached our shores we discovered that Big Business was abusing the Rights of new Citizens to earn a wage commensurate with their labors.

Protection for Native Americans arrived late in America, as did the rights of those who were brought to these shores as indentured servants, and as outright slaves. We fought a Civil War (in part) to free our country of outright and economic slavery; the rights of Native Americans was never adequately addressed, to our everlasting shame and sorrow. Today, Native Americans are not specifically provided with federal protection despite a plethora of Treaties which vowed concessions to this class of citizens "as long as grass grows or water runs".

But most of the wrongs we did were addressed by changing the Laws of the Nation, which continued even to the Constitutional Level until, in 1863 (during the Civil War) President Lincoln signed the Emancipation Proclamation. (It was flawed, but it was significant as a step to repealing the right of one man to legally possess another.)

In the nineteenth and twentieth Centuries, we addressed the rights of Labor. Congress ("the Legislature") was slow to recognize the societal wrongs implied and explicit in Capitalism vs Labor, and Labor Unions were formed ... not usually in a peaceful manner. Eventually, the Nation recognized that Capitalism was fraught with peril in an unregulated society, and federal laws were proposed and enacted to protect laborers in America.

The recent outcomes:
Today we are on the threshold of revaluing another Constitutional Right: The Second Amendment.

In DC v Heller, the Supreme Court of the United States is tasked with interpreting the United States Constitution to determine whether the Second Amendment is an Individual Right or a States Right.

Why?

The Second Amendment is one of the original Ten Amendments which constitute the Bill of Rights.

Let's talk about the Amendments to the Constitution.

During the Constitutional Process, Congress addressed societal issues which, in the opinion of the original Framers of the Constitution, had not been made clear. The goal was to enumerate specific Rights which were "Granted by God", not 'granted by the state'. (This was an expansion on the original acknowledgments in the Declaration of Independence: " ... that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ... ".)

The Bill of Rights refers to those rights of "... all men..." not as new 'rights', but as an enumeration of rights already in place; granted by God, not by The State. Specifically, The State (The Nation, not individual states) did not grant these rights, but the Federal Government only acknowledged them on behalf of 'All States'.

The United States Constitution, according to some scholars, is not subject to interpretation other than in the context which existed at the time it was originally enacted.

Witness the Eighteenth Amendment (establishing Prohibition of the 'manufacture, sale or importation of spirituous liquors') and the subsequent Twenty-First Amendment (repealing Prohibition), both of which addressed the issue of Liquor Control. These two amendments addressed a 'societal problem' in which the cure was empirically found to be worse than the problem.

How different is 'Liquor Control' from 'Gun control'?

Well, that is a subjective definition, but it does serve to demonstrate a few facts of the American Constitutional Process.

First, the Constitution is not a 'Living Document', and if you don't like the way the Constitution does NOT restrict Civil Rights, the historically acceptable solution is not by Judicial Fiat; the 'right' way to change it is by legislation.

Second, if 'Judicial Fiat' is accepted as a legitimate manner to change the meaning of the Constitution, there exist no legitimate for the 'Will of the People' to change this interpretation. The Judiciary has already been given unconstitutional powers due to the opinion of a few judges, and the Will of the People is undermined ... as is the power of the Legislature to enact a change in Federal Law (the Constitution) by non-Judicial means.

Third, (and as a sub-set of the 2nd point) by defining the Constitution as a "Living Document", the Balance of Power (specifically and by implication) in the Federal Government loses its ability to 'Check and Balance' one branch of Government against another. This is explicitly and obviously contrary to the intention of the Founding Fathers.

Other Constitutional Amendments provided a further expansion to include "all women" (by enacting the XIX amendment in 1920). This served as an excellent illustration of the way that constitutional amendments ... not judicial activism ... has always before been understood to be the acceptable means to 'modernize' the Constitution to include a more liberal interpretation of rights, not to restrict rights.

Finally, a comparison of the progress of the XIX amendment with the proposed "Equal Rights Amendment" (ERA) is an example of a constitutional amendment which was widely lobbied for, but failed to gather sufficient votes from the states to be ratified. The ERA sounded reasonable on its face, and Congress was ready to ratify it. However, a grass-roots campaign forced state legislators (and the general public) to look beyond the emotional furor and understand the likely consequences of its ratification. Today we see some of the same issues which we dodged back in 1977 are again being proposed at the state level (most tellingly in California) -- to the general public distaste across the country.

Summary:
The attempt to use the Supreme Court to change the Constitution by 'interpretation' is intrinsically flawed.

If the Constitution is perceived to no longer meet the needs of Modern Society, an attempt to change the "Interpretation" of the Constitution is in and of itself unconstitutional.

The only legitimate and legal way to change the 'interpretation' of the Constitution at this point is Legislative, not Judicial.

That is, the Supreme Court of the United States does not have the Constitutional Power to legislate on this question; the Supreme Court should decline to rule in opposition to the Second Amendment, or at a minimum should find that this is an Individual Right as opposed to being a "Collective Right".

If the Legislature opposes this definition, it is empowered to propose, lobby for, and legislate an Amendment to the Constitution ... which must be ratified by the states.

The United States' Government has no powers which are not granted by the Constitution. Any attempt to end-run these powers should be viewed as an attempt to usurp the rights of the Citizen, and treated accordingly.

[DefensiveCarry.com]

[Kerbouchard]

Living or not? I would say it was dead, along with everything it stood for, but that's just me.

[Ram Rod]

As long as we who believe in it, those who live it, those whom are willing to die for it, and those who are willing to defend it are alive, the constitution is alive. The constitution is a living document the way it was meant to be down to the last person willing to do any of the above in order to preserve it and pass it on.

[Hopyard]

The Constitution and scripture have a similar aspect. The latter can not be amended; the former can be amended only with the greatest of difficulty--and so it doesn't happen. The consequence is that "interpretation" must change as society changes. Both documents are fundamentally immutable, but neither works very well when interpreted in the strictest way possible. And neither would work very well if interpreted in an entirely " loosey goosey" way.

While I prefer a strict interpretation of our Constitution and a loose interpretation of scripture, either way, human beings inevitably interpret both-- and sometimes not very well.

The issue of "interpretation" is a tricky one for either document, as in many instances the true meaning is not really knowable to us. We weren't present at "the creation." All we can do is try and do our best. And hope that our leaders get it right.

[mlr1m]

I think most people agree that the constitution is meant to be malable. Its how we change it that the differences come in. I believe the founders put a machanism in place to make it difficult to make changes for a reason. They set up the admendment proceedure to make sure that only well thought out and debated ideas were to be added.

The other group thinks that the admendment proceedure is to slow. They believe that the courts should make new laws. Even our Senate believes that the Supreme Court should make new laws.
If you remember Bork, he was rejected on that reason. He said it was up to congress to make laws, not the courts.

We have people in congress who instead of voting on tough issues ,want the courts to do it for them. Look at abortion rights. Congress could pass a law. The courts should only make rulings on what is or isn't constitutional not to create new laws.

Michael

[SelfDefense]

The author of that piece was very knowledgeable and demonstrated a deep understanding of the intent of the Founders. Of course, the Constitution is not a living document except for the process of Amendment.

The United States Constitution, according to some scholars, is not subject to interpretation other than in the context which existed at the time it was originally enacted.

This is why we need men like Roberts, Scalia, Thomas and Alito, to stop the judicial activism.

First, the Constitution is not a 'Living Document', and if you don't like the way the Constitution does NOT restrict Civil Rights, the historically acceptable solution is not by Judicial Fiat; the 'right' way to change it is by legislation.

This is spot on.

Second, if 'Judicial Fiat' is accepted as a legitimate manner to change the meaning of the Constitution, there exist no legitimate for the 'Will of the People' to change this interpretation. The Judiciary has already been given unconstitutional powers due to the opinion of a few judges, and the Will of the People is undermined ... as is the power of the Legislature to enact a change in Federal Law (the Constitution) by non-Judicial means.

Another perceptive insght. Judicial review is not a power of the judiciary, no matter how many lawyers want to convince the people otherwise. It is bad for America and leads to a tyranny of the elite,an unconstitutional oligarchy.

Third, (and as a sub-set of the 2nd point) by defining the Constitution as a "Living Document", the Balance of Power (specifically and by implication) in the Federal Government loses its ability to 'Check and Balance' one branch of Government against another. This is explicitly and obviously contrary to the intention of the Founding Fathers.

The latter can not be amended; the former can be amended only with the greatest of difficulty--and so it doesn't happen. The consequence is that "interpretation" must change as society changes.

It seems you endorse an intrinsically flawed, unconstitutional methodology.

From the article:

The attempt to use the Supreme Court to change the Constitution by 'interpretation' is intrinsically flawed.
If the Constitution is perceived to no longer meet the needs of Modern Society, an attempt to change the "Interpretation" of the Constitution is in and of itself unconstitutional.

The only legitimate and legal way to change the 'interpretation' of the Constitution at this point is Legislative, not Judicial.

The United States' Government has no powers which are not granted by the Constitution. Any attempt to end-run these powers should be viewed as an attempt to usurp the rights of the Citizen, and treated accordingly.

[mlr1m]

The Constitution and scripture have a similar aspect. The latter can not be amended; the former can be amended only with the greatest of difficulty--and so it doesn't happen. The consequence is that "interpretation" must change as society changes. Both documents are fundamentally immutable, but neither works very well when interpreted in the strictest way possible. And neither would work very well if interpreted in an entirely " loosey goosey" way.

While I prefer a strict interpretation of our Constitution and a loose interpretation of scripture, either way, human beings inevitably interpret both-- and sometimes not very well.

The issue of "interpretation" is a tricky one for either document, as in many instances the true meaning is not really knowable to us. We weren't present at "the creation." All we can do is try and do our best. And hope that our leaders get it right.

1) It is very difficult to change. This is good we don't really want somethin halfbaked going in do we? They made it hard so it would be well thought out first. It was another well thought out way to protect the minority from the whims of the majority.

2) We do know what they were thinking. We have the papers written by the founders. We had the Federalist Papers. We have leters written between the parties involved.

There are provisions for chance, lets use them. Are you saying that since its hard to change the Constituion, the law of the land, that we can ignore parts of it?
Isn't that breaking the law? The constituion was not meant to be easily changed. It is there to controll the government. Its not there to make their job easy.

Michael

[user]

The Constitution is to the United States as the Bible is to the Roman Church: once they took possession of it, it means whatever they say it means. You can read the document until you fall over, but you'll never match the creativity the controllers have in spinning the document to match their agenda.

[concealed]

The Constitution is to the United States as the Bible is to the Roman Church: once they took possession of it, it means whatever they say it means. You can read the document until you fall over, but you'll never match the creativity the controllers have in spinning the document to match their agenda.

But it should not be that way. The constitution is pretty sensibly written and leaves little room for interpretation if you realize the intent of the founding fathers. Unfortunately, society thinks SCOTUS has some god like knowledge that makes them the experts and final ruling.

[concealed]

Here is another post concerning 2A. Self Defense and Hopyard have inspired me to develop and educated opinion, and my web crawler is picking up lots of articles.

What is the Second Amendment for?

Under the collective-right interpretation, the Second Amendment exists to allow states to create organized militias, as a bulwark against federal military power. But in District of Columbia v. Heller, the Supreme Court embraced the idea that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. My question is – what are these interests?


I do not think this question was answered in Scalia’s opinion in Heller (although I’d be happy to be convinced otherwise). It is not enough to say, as Scalia does, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.
Consider, for example, the following argument for a right of self-defense: The impulse to engage in self-defense in cases of imminent violence is so strong that if self-defense were prohibited by the government, people would defend themselves anyway. No threat of sanction is sufficient to stop people from defending themselves. Since a government can require people to do only what they can do (ought, as they say, implies can), the government cannot require people to refrain from self-defense.

One nice feature of this argument is that it suggests that the right (or, more accurately, the excuse) of self-defense is inalienable: I cannot promise to refrain from engaging in self-defense when faced with imminent violence, because I know I will be unable to abide by my promise when I’m threatened.

But there is no reason to think that this inalienable right of self-defense justifies a right to bear arms. To be sure, people probably have an overwhelming impulse not merely to engage in self-defense, but also to grab whatever weapon is at hand to defend themselves. So the government probably should excuse anyone who, in the course of self-defense, uses a weapon lying nearby (or, like MacGyver, creates a weapon on the spot). But that does not mean that the government must excuse people for keeping weapons for use in self-defense. After all, it is not true that our impulse to possess weapons is so great that no threat of sanction would lead us to give them up. People can be coerced to disarm. So there is no relationship between this right of self-defense and the Second Amendment.

Of course, there may be arguments for other rights of self-defense that could justify a right to bear arms. The problem with the justification above (which is the second that I discuss in my article) is that the right of self-defense is unrelated to the protection of innocent life. Self-defense is protected only because the impulse to engage in it is overwhelming, not because it makes us safer. A right of self-defense that is tied to safety, one might argue, can justify a right to bear arms.

I’ll discuss the safety argument for the Second Amendment in later posts. But it is a striking fact that Scalia’s opinion does not answer the fundamental question of whether the Second Amendment protects our interest in safety or an autonomy interest that is valuable even if its protection increases our vulnerability to violence. (At least I cannot find him addressing this issue.) The academic literature on the Second Amendment has not been helpful either.

Clarity about the purpose of the Second Amendment is necessary for any principled reasoning about its scope – including the looming question of whether the right to bear arms is incorporated into the Fourteenth Amendment and so applicable against the states.

[farronwolf]

The Constitution is to the United States as the Bible is to the Roman Church: once they took possession of it, it means whatever they say it means. You can read the document until you fall over, but you'll never match the creativity the controllers have in spinning the document to match their agenda.

The Roman Catholic Church did not "take possession of the Bible" they in fact compiled the books and determined what books would comprise the bible. Every other Christian religion since then has accepted the group of books until the KJV was made and the Apocrapha was removed from the original version. All the other books remained as was decided in the 4th century.

As far as the Constitution being a living document, it is in fact that. There were provisions made for ammendment to the Constitution making it so. As far as the courts go, they have a job defined by the document just like the other two branches of government. If for some reason the courts make a ruling that some think is not the intent of the founding fathers, then the provision is there for the legislative branch to change the law. Whether they choose to, or just gripe about an activist court is up to the legislature.

I don't think anyone can say that the founding fathers agreed on what was meant by everything in the Constitution. If they did, there would not have been debates about how it was to read and the Federalist Papers would not have been written to convince people to ratify the Constitution. After all the folks writing these papers didn't even want to give Americans the right of free speech or the RKBA.

It must be a living document, since we are a living nation. They go hand in hand. If not both will surely cease to exist.

[InspectorGadget]

The idea that the Constitution is a living document allows politicians to reinterpret the Constitution any way they want. The constitution was designed to be a stable document with the ability to modify through amendments as time goes on. Probation was put in place by one amendment and later repealed by another. As a living document 2A can easily be "reinterpreted" by whoever is in power as meaning the National Guard, without using a Constitutional amendment. A living Constitution is an invention of the Liberals to circumvent the constitution for their own desires without the Majority of the country having a say. In other words under a living Constitution your Civil Rights are dependent on the whims of the nearest politician, and not the Constitutional Process through amendments.

[Hopyard]

As far as the Constitution being a living document, it is in fact that.

I don't think anyone can say that the founding fathers agreed on what was meant by everything in the Constitution. If they did, there would not have been debates about how it was to read and the Federalist Papers would not have been written to convince people to ratify the Constitution. After all the folks writing these papers didn't even want to give Americans the right of free speech or the RKBA.

It must be a living document, since we are a living nation. They go hand in hand. If not both will surely cease to exist.

Yes, and indeed a strict construction in the literal manner some propose here would indeed mean that there is no right to free speech. That is the illogic of some of the radical strict constructionists. They would give up their rights --2A especially-- to further a flawed view of the BOR.

Oh, actually I think they did want to give folks freedom of speech and freedom of religion and freedom from troops being quartered in your home, and freedom from unreasonable searches. It was radical judges and justices who later turned things upside down to promote slavery, promote Jim Crow laws, prevent labor organization, and to commit innumerable other abominations on The People in the name of strict interpretation.

In any case, so long as the document requires "interpretation" and rulings as to its precise meaning, it is by definition a living document; and as the SC was established to do precisely these things, our Constitution is by definition a "living document" subject to the frailties of human intellect, emotion, and political tsunamis.

[C9H13NO3]

I think most people agree that the constitution is meant to be malable. Its how we change it that the differences come in. I believe the founders put a machanism in place to make it difficult to make changes for a reason. They set up the admendment proceedure to make sure that only well thought out and debated ideas were to be added.

The other group thinks that the admendment proceedure is to slow. They believe that the courts should make new laws. Even our Senate believes that the Supreme Court should make new laws.
If you remember Bork, he was rejected on that reason. He said it was up to congress to make laws, not the courts.

We have people in congress who instead of voting on tough issues ,want the courts to do it for them. Look at abortion rights. Congress could pass a law. The courts should only make rulings on what is or isn't constitutional not to create new laws.

Michael

I think this partially helps prevent redundancy in our legal system. The constitution is without a doubt a legal document. If something is unconstitutional, it's already illegal. No need to make a new law to "make it illegal again". I think in some instances though it would be more appropriate for legislation to be passed rather than tossing it to SCOTUS.

[edr9x23super]

To me it boils down to this:

1) The Bill Of Rights is inviolate and non-negotiable; those who would negotiate those rights away does so at their own peril.

2) There are many amendments to the constitution that fit the "living" category, the prohibition on alcohol during the '20s was one such example. as society's views changed, that particular amendment was repealed.

3) As I stated before, the first ten amendments to the consitution are a good benchmark of how free we are as a people. Negotiate or take away any one of the freedoms, and we are no longer american citizens, we are subjects.

4) It is then time to exercise our most precious freedom, the one that guarantees all the others.