Original Intent (Enduring) Constitution vs Living Constitution

[TGHusker]

In the Elizabeth Warren thread, Knapp made mention of the living constitution. That made me think there should be a discussion on the topic. Thanks Knapp for the inspiration.

 

I tend towards original intent but I understand why others believe in the living constitution view point. I look at the Constitution as a good 'mission statement' it address our core values which should guide our decisions however it isn't so rigid that we cannot take that original intent and apply it to today's society. I don't believe the court should be looking at the laws and constitutions other nations have enacted to give us guidance in this present era (as some have done). If we forsake our 'mission statement' we no longer have a anchor to guide the good ship USA.

 

Some random articles from a quick goggle search ( I could not find a Vox article - perhaps there is one that someone can pull up)

 

http://apps.americanbar.org/publiced/constitutionday/OriginalIntent.pdf

 

A scholarly paper from Yale on the subject

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1221&context=fss_papers

 

William Rehnquist's view

http://www.ejtn.eu/Documents/About%20EJTN/Independent%20Seminars/Human%20Rights%20BCN%2028-29%20April%202014/Rehnquist_Living_Constitution_HJLPP_2006.pdf

 

 

http://www.law.uchicago.edu/alumni/magazine/fall10/strauss

 

A view from the left

http://www.dailykos.com/story/2005/07/23/133016/-On-Constitutional-Interpretation-Originalism-v-A-Living-Constitution#

 

A view from the right

http://www.heritage.org/research/reports/2009/09/the-originalist-perspective

[knapplc]

It is patently absurd to believe the conditions and needs of the late 18th century apply 100% to today, and that laws crafted then should not be modified in any way to fit the needs of an evolving society.

[Junior]

 

 

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods.

 

Thomas Jefferson

http://teachingamericanhistory.org/library/document/letter-to-samuel-kercheval/

[TGHusker]

 

 

 

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods.

 

Thomas Jefferson

http://teachingamericanhistory.org/library/document/letter-to-samuel-kercheval/

 

good quote - from someone who was at the center of forming this more perfect union.

[TGHusker]

It is patently absurd to believe the conditions and needs of the late 18th century apply 100% to today, and that laws crafted then should not be modified in any way to fit the needs of an evolving society.

I have never looked at original intent in that way. Laws are to made and modified to fit the current society as society changes. I think of original intent more as a guard rail and not as s girdle - give basic guidance but not choking the cr+p out of you. The amendment process within the constitution is one great provision to not get trapped into the strict girdle of original intent.

[BigRedBuster]

I have to say, I am not necessarily comfortable with either direction.

 

I believe there are some very basic frameworks that the constitution lays out that simply don't need interpretation. They are timeless. Free Speech. Freedom of religion...etc.

 

The biggest part of the constitution is that the framers put in place the ability of the coming generations to modify it to meet their needs. We have seen this a number of times with amendments. Sometimes amendments are needed to even clarify even more what should have been meant in earlier amendments.

 

The Constitution is a very unique document in that in almost it's entirety, it is a document that limits government and gives people more more freedoms. So often around the world, governmental organization is just the opposite.

 

So, interpretation of how the constitution applies to a particular law is the work of the SC. If a certain segment of the US population disagrees with how they interpret the constitution and think there is a great unjust in the world, then offer up an amendment and see how if flies. In other words, work within the framework of what has been put in place a long time ago and has worked well ever since.

 

I'm not comfortable with a strict constitutional attitude that the right to own guns allows you then to own surface to air missiles. I am also not comfortable with the ability to just interpret the constitution how ever you see fit simply because of today's attitudes with out making sure those changes aren't needed to be taken through the proper process.

 

Wow....that makes my opinion clear as mud.

[HUSKER 37]

Sorta long, but some interesting thoughts related to this discussion...

 

[The Dude]

Not going to lie, not sure I can sit through an hour of Alex Jones and Billy Corgan.

[HUSKER 37]

Yeah...I parked it here partly so I could finisk it-Popeye

[tschu]

Personally I believe that blacks are only 3/5ths of a person, it says so right in the Constitution so it must be true

[Abdullah the Butcher]

Personally I believe that blacks are only 3/5ths of a person, it says so right in the Constitution so it must be true

That was already amended 146 years ago, nice try though. If you don't like something in the constitution then start a movement to get an amendment.

[StPaulHusker]

 

Personally I believe that blacks are only 3/5ths of a person, it says so right in the Constitution so it must be true

That was already amended 146 years ago, nice try though. If you don't like something in the constitution then start a movement to get an amendment.

 

Or something not in the constitution

[zoogs]

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

I fully agree that the Constitution should be very slow to change, but this is clearly a document filled with practical 18th-century compromises catering to 18th-century interests so that it could get ratified. Stable, enduring, long lasting, yes -- but not static.

 

 

We like to say "Our Founders would have thought ____" about certain laws, etc, but what our Enlightenment-age founders would probably have found fundamentally abhorrent above all is the idea that progress and political thought should cease to advance forever after the completion of one masterpiece.

[TGHusker]

 

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

I fully agree that the Constitution should be very slow to change, but this is clearly a document filled with practical 18th-century compromises catering to 18th-century interests so that it could get ratified. Stable, enduring, long lasting, yes -- but not static.

 

 

We like to say "Our Founders would have thought ____" about certain laws, etc, but what our Enlightenment-age founders would probably have found fundamentally abhorrent above all is the idea that progress and political thought should cease to advance forever after the completion of one masterpiece.

 

I believe that is what the amendment process is all about is it not - to make sure the masterpiece lives on into modern time install of overthrown in its totality. Sometimes a society reacts too quickly - such as in the case of prohibition only to reverse itself. In the same way, I think judicial review should be to take the most conservative approach to the constitution - and not be knee jerk reactions to societal trends. Those trends can change wt the next generation. Allow the amendment process to make changes that span the distance of time.