U.S. Constitution: Living and Breathing, or Original Intent

[Eric Davis]

Living & Breathing Document

• The constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.

OR

Original Intent

• Original designers of the Constitution provided for the process of changing it (i.e. Amendments through process of ratification), they never intended for their original words to change meaning.

[dupont2005]

i don't really care what the farmers intended, because i doubt it was women and minorities voting, holding office, and earning an equal wage. i do believe the constitution should only be used for guaranteeing rights, not restricting them

[Fenris]

Originally Posted by Eric Davis

Living & Breathing Document

• The constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.

OR

Original Intent

• Original designers of the Constitution provided for the process of changing it (i.e. Amendments through process of ratification), they never intended for their original words to change meaning.

Hmm. If you're framing the question that way, then I'm a lot closer to original intent.

We have the Amendment system, which seems to work pretty well for the purpose of adapting the document to the times.

When politicians play around with the meaning of words, though, it's generally bad news. It tends to create law that is less clear or coherent than law which respects original intent.

õ
It's not the only concern, but it is a concern!

[LtMarvel]

My state constitution is original intent. It can only be read in book form.

The US Constitution is flexible. It can fit on the back of a cereal box. (Or in a Doonesybury Sunday Strip).

Anytime my state wants to make a change in something, say where gambling can be done, it requires a new amendment.

Anytime my country wants to make a change in something, say control air traffic, they pass a law. The US Constitution remains unchanged.

[rick]

Originally Posted by Eric Davis

Living & Breathing Document

• The constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.

OR

Original Intent

• Original designers of the Constitution provided for the process of changing it (i.e. Amendments through process of ratification), they never intended for their original words to change meaning.

It depends on which founder you are refering to doesn't it?

Madison took the view that the Constution was more or less to be strictly obeyed although of course just a few years later he more or less threw that view out the window by backing Jeffersons unconstitutional purchase of Lousiana.

Hamilton on the other hand took the view that the Constitution needed to be flexible to adjust for any unforseen circumstances, again the Lousiana Purchase being a fine example of what he was thinking about.

Neither of them believed in the idea of judicial review of the constitution by the Supreme Court either. That whole idea comes directly from John Marshall.

So the answer is more or less, both.

[Serik]

If you're interested in Madison and Jefferson's take on the issue:

http://press-pubs.uchicago.edu/found.../v1ch2s24.html
http://odur.let.rug.nl/~usa/P/tj3/wr...brf/jefl81.htm

Jefferson's argument:

I set out on this ground which I suppose to be self evident, "that the earth belongs in usufruct to the living;" that the dead have neither powers nor rights over it. ... Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right.

Madison's:

If the earth be the gift of nature to the living their title can extend to the earth in its natural State only. The improvements made by the dead form a charge against the living who take the benefit of them. This charge can no otherwise be satisfyed than by executing the will of the dead accompanying the improvements.

Really, though, excerpts don't do their arguments justice. Just read the whole correspondence :D

The Constitution is, by design, a malleable document, hence the ratification process. Free speech, universal suffrage, etc. are all codified through amendments. When the People decided that federalism was overrated, they up and ratified an amendment providing for the direct election of senators.

The world's changed tremendously in the 200+ years since the Constitution was ratified, so interpretations based strictly on some notion of "original intent" strike me as ass-backwards. Even so, ideas like federalism, separation of powers, etc. are fairly timeless; each generation can figure out the details.

[StoneGold]

I find it hard to believe a bunch of guys essentially creating a new government figured their ideas couldn't be changed. I mean, unless they were serious sociopathic assholes who figured they got it done in one. Which they very well could have been.

[Minkie]

Some parts of the Constitution are quite clear and plain in their meaning.

Some parts require interpretation, and it has been argued that the framers intended this to be so. If so, then interpretation is their original intent. And therefore a living breathing document is the original intent. Certainly to the extent that they provided a means for amendment this is so.

What do the terms "cruel" and "unusual" mean with reference to punishment?

What does "unreasonable" mean with reference to search and seizure?

Or "excessive" with regard to bail?

And the seventh amendment with its reference to "twenty dollars"?

(In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law.)

Seems a ridiculous amount to reference now, doesn't it? Maybe they should have left it as vague as terms like unreasonable, excessive, cruel, or speedy (as in right to a speedy trial).

And don't even get me started on the murky second amendment.

Do we have any choice but to interpret? I mean, I guess we could play a better game of 18th century Americans than we can manage of 1st century Christians, or whatever BCE followers of YHWH. But why would we want to?

More and more I understand William F. Buckley's observation that the role of the conservative is to stand in front of history yelling "Stop!"

[carabas]

It is not my constitution, so I do'nt really care all that much

But like Minkie said, there's bits and pieces in it that are written rather... obscure language, unbefitting a very important legal document.

I think it could do with a complete overhaul. Update the language, kick out the bits that don't work anymore (byebye second), define the bits that are undefined...

Maybe amend the first amendmend to not include speach that is harmful.

[Minkie]

Actually, I like that it's open to interpretation. I feel the same way about the Bible. Let both be for the present day, not for centuries or millennia past.

Just as Superman is re-interpreted for each new generation, let the Virgin Mary mean what she means today rather than what she meant to Medieval Rome.

Otherwise Superman, the BVM, the Bible, and the Constitution will die.

[Alexander the immortal]

Originally Posted by Eric Davis

Living & Breathing Document

• The constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.

OR

Original Intent

• Original designers of the Constitution provided for the process of changing it (i.e. Amendments through process of ratification), they never intended for their original words to change meaning.

this discussion is pointless as the Americans have already chosen

C) We don't care what others intended to do with the constitution , we would like to make some changes.

If the occasion arises that they need to make some changes , sooner or later they will make them.

The changes come either in the form of changing the text or the interpretation of it .

This process is a good thing.

of course i am an outside observer but in this case i think it helps.

[carabas]

Originally Posted by Minkie

Actually, I like that it's open to interpretation.

But... it's your constitution. The basis of lawful society. How can you have proper laws when your constitution is so vague and open for interpretation on some rather important points? It boggles the mind.

[rick]

Originally Posted by carabas

But... it's your constitution. The basis of lawful society. How can you have proper laws when your constitution is so vague and open for interpretation on some rather important points? It boggles the mind.

It's managed to hold up so far, and has had an almost self-correcting nature to our greater injustices.

[Sir Fury]

Living and breathing.

I find this What Would The Founding Fathers Do? attitude to be a bit silly. The dividing line of history is the Industrial Revolution, and the authors of the Constitution are on the other side of it.

[sweetdreams]

Here's the Scalia interview on 60 Minutes

http://www.cbsnews.com/stories/2008/...n4040290.shtml

At 72, Justice Scalia is still a maverick, championing a philosophy known as "orginalism," which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago.

Scalia has no patience with so-called activist judges, who create rights not in the Constitution - like a right to abortion - by interpreting the Constitution as a "living document" that adapts to changing values.


--------------------------------------------------------------------------------

Asked what's wrong with the living Constitution, Scalia tells Stahl, "What's wrong with it is, it's wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution."

"It is an enduring Constitution that I want to defend," he says.

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

"As opposed to what people today think it means," Stahl asks.

"As opposed to what people today would like," Scalia says.

"But you do admit that values change? We do adapt. We move," Stahl asks.

"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.

He's been on a mission as an evangelist for originalism, at home and around the world.

For example, he visited the Oxford Union in England.

"Sometimes people come up to me and inquire, 'Justice Scalia, when did you first become an originalist?' As though it's some weird affliction, you know, 'When did you start eating human flesh?'" Scalia told students, who replied with laughter.

They may be laughing, but in the U.S. Scalia is a polarizing figure who invites protestors and picketers. There haven't been many Supreme Court justices who become this much of a lightening rod.

"I’m surprised at how many people really, really hate you. These are some things we've been told: 'He’s evil.' 'He's a Neanderthal.' 'He’s going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.

"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.

Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."