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Anybody interested in a discussion of things like strict construction v loose construction, judicial activism v judicial restraint, original intent v a living constitution, or specific sections of the Constitution that are in the news, such as the Fourth Amendment and warrantless wiretaps or the First Amendment and free speech and a free press?
Sure….I'll move this topic into the American Legal History board and we can discuss this, since it is an interesting area.I believe that the Constitution is a "dead" document; in other words, it is necessary to try to determine the sense and intent behind the words in the Constitution as written by the Framers. I do not agree with the "living document" interpretation of the Constitution which argues that the meaning of the law changes according to the times. This latter interpretation essentially renders the Constitution meaningless, since the rights protected under the original document won't necessarily hold true in the future.
Sure....I'll move this topic into the American Legal History board and we can discuss this, since it is an interesting area.I believe that the Constitution is a "dead" document; in other words, it is necessary to try to determine the sense and intent behind the words in the Constitution as written by the Framers.? I do not agree with the "living document" interpretation of the Constitution which argues that the meaning of the law changes according to the times.? This latter interpretation essentially renders the Constitution meaningless, since the rights protected under the original document won't necessarily hold true in the future.
First, I don't recall seeing an American Legal History board on this sight. Is it at another location or did I just miss it? As for the Constitution being a "dead" document, that would presume that the Founders assumed that conditions would never change. They in fact knew that conditions changed, because it was precisely the reason that they could no longer function under British colonial rule, that they had in fact outgrown their founders. Besides, if it was intended to be an unchanging document, why would they have included a mechanism for adding amendments, which by definition change the document. One of the bigger debates in the Constitutional Convention was whether to make the Amendments as add-ons that modified the document or as changing the fundamental document. They went with add-ons because, if an amendment changed the foundational document, it would have to be re-written and re-ratified with every amendment, hardly a practical solution. So they created a mechanism for modifying the document, for making it able to change as circumstances changed. They may not have envisioned the extent of the change, they may not have even expected it to last this long, but they were smart enough to create a flexible document. Besides, there is absolutely no way we can KNOW what their original intent was since there was no official record kept of their deliberations, only recollections, which was deliberate, quite likely because they didn't want future generations to be limited by their interpretations. These were smart men, flexible men, to suggest that they expected this nation, this world, to stay exactly as it was, or the governing document to be unchanging, flies in the face of all logic. Besides, if you're right, we have to return most the land west of the Mississippi to France and Mexico since there is absolutely nothing in the Constitution about acquiring additional territory, much less forming new states. We would be unable to regulate air travel or television. A dead Constitution is a dead letter.
To answer some of your points, the Founders were primarily men of ideals and principles, and they knew that there were certain rights – “inalienable” – which endured regardless of changing circumstances. They created a document which would hold weight not only back when they made it, but in succeeding generations as well. Because the nature of man doesn't change, their principles could apply from age to age (and they do). They built "flexibility" into the Constitution to a degree, but they didn't make it so easy that it could be changed too easily. After all, they were familiar with abuse of power in European nations. In essence, they wanted the principles set forth in the Constitution to prevail over time, while allowing for limited changes according to the desires of the States.As for original intent, I think that it is possible to get a good idea of the Framers' views by studying history, studying their writings, etc. If we don't attempt this, we run into trouble. What would stop the courts from one day saying that the prohibition of "abridging the freedom of speech, or of the press" only applies to "speech" and "the press", but not to private letters, e-mails, etc? If the principles of the Constitution change with the times, a judge could certainly interpret the First Amendment to not protect certain rights that we take for granted. We can understand from the original intent that the freedom protected here covers more than just oral speech and the press. I believe that Congress' regulation of things such as air travel and television fall under Article I Section 3: "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes". I'm not sure where the powers to form new states or acquire new territory are derived, but I imagine these are questions and issues that have been dealt with in the past. I'd have to look them up, though.And yes, this American Legal History topic has been around for a while, just hidden as a "child board" of the General History Chat......it might just be hard to see at first.
This is technical, so I can't contribute all that much, but I'll try. It's very interesting seeing the dead vs living discussion. Phid, you have a good board and members here. I see opposing political views, yet it's very good discussion without the usual arguing you see on other boards.With that said, and seeing that this surveillance issue is such a hot topic, it would be great to see it discussed here. What do you guys think about it? Is it Constitutional? Should we even be concerned whether or not it is during a time of war, if this actually is a time of war? I think it should be allowed, and I'll leave it at that for now.
This is technical, so I can't contribute all that much, but I'll try. It's very interesting seeing the dead vs living discussion. Phid, you have a good board and members here. I see opposing political views, yet it's very good discussion without the usual arguing you see on other boards.With that said, and seeing that this surveillance issue is such a hot topic, it would be great to see it discussed here. What do you guys think about it? Is it Constitutional? Should we even be concerned whether or not it is during a time of war, if this actually is a time of war? I think it should be allowed, and I'll leave it at that for now.
Hey thanks, skiguy. Yes, I think that a Constitutional discussion of the current surveillance issue is a good idea, especially given America's powers in times of war. I think I'll start another thread with that issue.
Hate to disagree with the emperor on this, but I am compelled to weigh in on this matter. ?I don't like the term “dead.” ?I know what you mean by it, but to me it is somewhat of a clumsy term. ?I believe the Constitution is a living document, that might need to be changed in rare…..and I do mean rare occasions whenever anachronistic laws hinder rather than uphold the progress towards a more perfect union. ? The abolition of slavery should have been done during the convention, but the Founders, for whatever reason, just didn't have the stomach to do what was necessary at the time…..instead they patted themselves on the back for the 3/5 Compromise. ?The seeds of the Civil War were sown with that dubious clause. ?Still the document they created was nothing short of divinely inspired genius. ?I do believe that the Founders wanted the Constitution to be worthy of the Divine Creator's approval insofar as making it a contract with the Divine Lawgiver as an extension of His moral authority. ?Now I know some will cry foul, but you need to understand what I am suggesting. ?I know that God is not mentioned in the Constitution, but the Framers accepted that the Divine Creator stood in the background of all virtue, morality, and law. ?The document was created with this concept in mind for without a Divine Lawgiver who protected inalienable rights, it was just another piece of paper with no force behind it. ?The Constitution would literally be dead if there were no Higher Moral Authority backing it up. ?Still, men are frail and prone to errors. ?The Constitution, in its original form, was imperfect, and remains imperfect primarily due to the shortsightedness of men who fail to remember the true force that is behind it. ?The slavery issue has already been mentioned, but it would be both unwise and even presumptuously arrogant for us to say there are no other flaws to be found. ?Original intent is to be preferred yes, but there are times when original intent must be overturned because of greater wisdom and experience. ?If the Constitution cannot remain flexible, it will not be able to weather calamities such as Civil War and World Wars or Global Wars on Terrorism. ?Each time this nation has arisen to meet the internal and external threats that seek to destroy it, and I firmly believe this is because our Constitution is a living breathing extension of the Divine spirit that inspired it. ?Think about it for a second. ?Hammurabi's Babylon self-destructed. ?The Mosaic Law proved insufficient. ?Justinian's Laws did not save Rome. ?Napoleon's codex didn't save France from wanton destruction. ?The Dhamma of Ashoka of the Mauryan Empire of India didn't preserve his kingdom. ?Yet, America has withstood the greatest troubles the world has ever witnessed and each time it has come out stronger than before. ?Why? ?Because the Constitution lives and is sustained by Divine Protection which gives it the power and force for Americans to cherish it and abide by its precepts with pride. ?If it were truly a dead document, it would be “just another crappy piece of paper.” 😉
Donald I agree with what you are saying about the constitution. Nothing is perfect when created by man, even when he tries to base it on something higher then he is. The constitution would indeed be dead if it could not flex with the changing needs of the people.However your inclusion of the ten commandments as being insufficient I disagree with. It was only insufficient in that man's refusal to accept and live by that law caused it to fail, but not the law itself.
Donald I agree with what you are saying about the constitution. Nothing is perfect when created by man, even when he tries to base it on something higher then he is. The constitution would indeed be dead if it could not flex with the changing needs of the people.However your inclusion of the ten commandments as being insufficient I disagree with. It was only insufficient in that man's refusal to accept and live by that law caused it to fail, but not the law itself.
Theologically the Mosaic Law is different from the Decalogue or Ten Commandments. But without being technical, I understand what you're saying. What I was hinting at was that the Mosaic Law served only as man's janitor, always "cleaning him up" rather than bringing him closer to God. It proved insufficient in that regard. Similarly the 3/5 compromise proved to be a janitorial clause cleaning up an ugly situation by putting things off to a later date. The repercussions were realized in 1861. Likewise the Mosaic Law temporarily cleaned man up but the repercussions of putting off total cleansing of sin led to the cross. So my point would ultimately be that laws may prove adequate for a season, but over time they may prove insufficient for realities down the road. If the Constitution were etched forever in stone like the ten commandments, it would soon crack and be thrown down into a pile of rubble. 😉
We may have to agree to disagree. I don't want to hijack this thread. I do agree with your illustration when it concerns the constitution, they should have done what was right in the first place instead of putting it off. Like you said it all came to a head in 1861. If they had not put it off 600,000 plus would have lived. I don't think the mosaic law applies here. That law was given to men by God, it was a perfect law. It was man who could not live by it. When the founding fathers drew up the constitution it was mans law therefore not perfect. Was the constitution improved upon when slavery was abolished? Yes of course it was, no argument there. I guess my point is, is that comparing a theological document, a perfect one, to a man made document, no matter how hard they tried to base it on Godly morals is not a fair comparison.
