Living Constitution

[nonAtlas]

Originally Posted by Thinman

If the constitution wasn't meant to be changed, the founders wouldn't have offered amendments to it.

That does not address the question at hand. The question is how what the Constitution actually says is to be regarded, and whether some people have the privilege of completely recasting the system for their own personal agenda. Amending the document is a completely different question.

[Minotaur]

Originally Posted by HoosierBoy

Six of one, half-dozen of the other. You're wanting to give the Supreme Court the power to not only assess the Constitutionality of laws, but also the soundness of them. You're wanting to allow the Court to legislate, as well as adjudicate.

Unless I'm totally mistaken, isn't that what they are supposed to do? Not the legislating part though.

"How it's used is being modified" - Explain what you mean by that, please.

Nothing I haven't said before... used in the context of the current times to decide the validity of federal, state and local laws.

Hey, maybe it's not the Constitution that changes or its use modified, but the federal, state and local laws which change according to the times, and the Constitution just says whether they are valid or not.

I don't know... maybe we are saying the same thing differently.

[HoosierBoy]

Originally Posted by Minotaur

Unless I'm totally mistaken, isn't that what they are supposed to do? Not the legislating part though.

No, they're not supposed to assess whether a law is sound or not. Judicial review is to be limited to the Constitutionality of a law, not the intelligence of it. Federalist No. 78 lays this out explicitly. When the Court bases a decision on the desirability of a law instead of the legality of a law, it becomes a legislative body.

Originally Posted by Minotaur

Nothing I haven't said before... used in the context of the current times to decide the validity of federal, state and local laws.

Hey, maybe it's not the Constitution that changes or its use modified, but the federal, state and local laws which change according to the times, and the Constitution just says whether they are valid or not.

I don't know... maybe we are saying the same thing differently.

That I'll agree with (the bolded portion).

[KLMARB]

The whole point of the Constitution is to protect the rights of the individual against the rights of the collective. Were it to be considered "living" as is described in the above posts (sorry, Minotaur, on this point we disagree) it would become entirely subjective and at the mercy of the whims of those in power. Exactly what it was designed to protect against. The way it can be changed is clearly laid out and is the amendment process, made very difficult and slow ON PURPOSE........

[Minotaur]

Originally Posted by HoosierBoy

No, they're not supposed to assess whether a law is sound or not. Judicial review is to be limited to the Constitutionality of a law, not the intelligence of it. Federalist No. 78 lays this out explicitly. When the Court bases a decision on the desirability of a law instead of the legality of a law, it becomes a legislative body.

OK, then we agree on that too. Yes, their job is to assess the constitutionality of the law. I thought that was a given. My bad.

[Minotaur]

Originally Posted by KLMARB

The whole point of the Constitution is to protect the rights of the individual against the rights of the collective. Were it to be considered "living" as is described in the above posts (sorry, Minotaur, on this point we disagree) it would become entirely subjective and at the mercy of the whims of those in power. Exactly what it was designed to protect against. The way it can be changed is clearly laid out and is the amendment process, made very difficult and slow ON PURPOSE........

Actually I don't think we disagree...

...the theory of a "living" Constitution suggests a founding document that remains interdependent with an evolving society. Its proponents thus argue that societal progress must be taken into account when interpreting key constitutional phrases.[1]

For example, as society changed its attitudes towards blacks in the 60s, we now have a different view of the Constitution when making laws. Laws that were perfectly acceptable 100 years ago are now unthinkable. Because society changed.

That's all it really is, to me.

[nonAtlas]

Originally Posted by Minotaur

For example, as society changed its attitudes towards blacks in the 60s, we now have a different view of the Constitution when making laws. Laws that were perfectly acceptable 100 years ago are now unthinkable. Because society changed.

But the Constitution did not. The Constitution never endorsed or established slavery or oppression of black folks, and only our determination to enforce the Constitution's protection of ALL people made that disregard of the document dry up. What your attempted example actually proves is how dangerous your "living constitution" thesis is, because in the same way as the oppressors of black people disregarded the Constitution for their own purposes, now you want to convince us to allow you the same freedom.

You have affirmed the strict interpretation of the Constitution and torched your proposal that we read it differently. Thanks.

[HoosierBoy]

Originally Posted by Minotaur

Actually I don't think we disagree...



For example, as society changed its attitudes towards blacks in the 60s, we now have a different view of the Constitution when making laws. Laws that were perfectly acceptable 100 years ago are now unthinkable. Because society changed.

That's all it really is, to me.

There are scholars, however, who take the notion of a "living Constitution" a step further, and who argue that the Supreme Court should be free to essentially alter the meaning of the Constitution at any time.

[Minotaur]

Originally Posted by HoosierBoy

There are scholars, however, who take the notion of a "living Constitution" a step further, and who argue that the Supreme Court should be free to essentially alter the meaning of the Constitution at any time.

Yeah, well... anything can be taken to its extreme. And I do see that as an extreme... an unacceptable one. That sets up an oligarchy.

[KLMARB]

Originally Posted by Minotaur

Yeah, well... anything can be taken to its extreme. And I do see that as an extreme... an unacceptable one. That sets up an oligarchy.

The real danger to the Constitution is what is commonly referred to as "judicial activism" or more to the point, finding "Rights" in the Constitution that were not specifically spelled out. Matters clearly to be left to the States. Abortion, forced bussing of children, affirmative action, etc. All are clearly an intrusion against the rights of individuals in an attempt to redress social wrongs, all never mentioned in the Constitution.....

[Gadsden]

Originally Posted by Thinman

If the constitution wasn't meant to be changed, the founders wouldn't have offered amendments to it.

the constitution was meant to be just that changed, not interpreted differently, that's why the Founders set up a legislative process to amend it.

secondly, the Bill of Rights, which I expect you are referring to was essentially a safeguard. many people opposed it because it was in their view unnecessary, since the government had no power in their minds to do any of the enumerated things. thankfully, they realized that perhaps it would be a good idea to list specific things because people without a list of what the government could and could not do might infringe upon others' rights. surprise, surprise, the gov. still does, even with them enumerated.

[JDW15217]

The big problem with the "Living Constitution" theory is that it gives too much authority to unelected and unaccountable judges who keep their seats for life. If you want the Constitution to evolve with the times, there's a much better way to do that--AMEND the Constitution in the manner which the Constitution itself provides in Article V.

Yes, amending the Constitution is hard...but shouldn't it be? And shouldn't it be the task of the political branches on the state and federal level--you know, the folks we elect and who are most directly accountable to us?