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What's the difference (if any) between a Federalist and a Constitutionalist?I've heard "living breathing document". What does that mean exactly and what's the opposite? Would that be constructionalist?
I believe a constitutionalist refers to someone who in sticking strictly with what the Constitution says, as intended by its creators.
“Living breathing documet” = a document with principles that change/evolve over time = BAD!"Strict constructionalist" = person who understands the Constitution in light of the plain meaning of the words"Originalist" = related to strict constructionalist, but this person tries to understand the meaning of the principles of the Constitution as the Founders understood themAs Justice Scalia once said, the strict constructionalist would read the First Amendment to grant freedom of speech, but not necessarily to the written word (since writings are not technically "speech"). The originalist would understand that the meaning of "speech" to the Founders included the written word.Justice Scalia also criticized children who learn to recite that the Constitution is a living document. He says that the Constitution is a dead document. The meaning of this is that the principles therein do not change.I agree with Scalia here. If the Constitution were able to "evolve" in meaning, then we should fear of each and every one of our rights. After all, there would be no permanent protection of the rights spelled out in the Constitution.
Thanks for the answers. I new “living document” was a bad thing. What about adding amendments? Each admendment stands in and of itself, correct? They're not adding a new meaning to a previous amendment.I just don't understand how the SC can make a final ruling "OK, this is what the 2nd amendment means and that's it" yet it can be changed by another Supreme court ruling. Why can't it be "locked in"? Or is it?
Not to play Devil's Advocate here or anything, but the amendment process makes the Constitution somewhat alive. The 13th Amendment is probably the best example here. To assume the Constitution is dead means it shouldn't change, but this would assume it's perfect and the Founders were wise enough to structure it in a way that it could be modified when needed. So maybe a better term is it's undead or zombie. 😀
Amendments are ok, since they are anticipated by the original Constitution itself. Being a “dead document” doesn't mean that the document cannot provide for additional issues that come up, but that the fundamental principles of the document itself are kept in tact. The fact that an amendment is added on to prohibit slavery does not change Article II of the Constitution, for example. Our court system rests on the principle of stare decisis, which says that decisions of law are to rest on and follow principles ascertained through previous court holdings. Departure from precedent should be an exception rather than the rule. The reason why we see one interpretation of a law at one point and then a different interpretation at another has to do with a few things. First, the cases are fact specific, and in actuality the facts of each case is probably different but may appear from the outside to be the same. In such cases, different facts could lead to different holdings (i.e. legal standards) that are developed. Second, I think you have judges who bring their personal feelings to the case rather than using something like an originalist approach. By "feelings" I don't necessarily mean wishy-washy type of crap, but rather the use of popular opinion or even foreign practices to support one interpretation over another. Of course if law were to be boiled down to a popularity contest, we would have no real need for the Constitution anymore, would we? BTW I should move this thread into General History as it could appeal to many people - that is if Ski doesn't mind.
By "feelings" I don't necessarily mean wishy-washy type of crap, but rather the use of popular opinion or even foreign practices to support one interpretation over another. Of course if law were to be boiled down to a popularity contest, we would have no real need for the Constitution anymore, would we?
Not at all, move it. I just posted it here because I didn't think it was history.The popularity contest. That's what concerns me because it seems like more and more of that is going on. It's almost like the interpretation is determined or even swayed by public opinion of the day. 😐Like, for example, is marriage defined in the Constitution? Should it be?
