Check out this fabulous little essay by Jonah Goldberg on the virtues of a dead Constitution.
Here's a nice bit:
We’ve all heard about how great living constitutions are. The most extreme, but essentially representative, version of this “philosophy” can be found from the likes of Mary Frances Berry or the Los Angeles Times’s Robert Scheer. They matter-of-factly claim that without a “living” constitution, slavery and other such evils would still be constitutional. This is what leading constitutional legal theorists call “stupid.” The constitutionality of slavery, women’s suffrage and the like were decided by these things called the 13th, 14th and 15th Amendments. Also, contra feminists, women got the vote not through a living constitution but by the mere expansion of the dead one — via the 19th Amendment.
11 comments:
It's impossible. There will always be interpretation, and there's nothing you can do about it. Don't fool yourself into thinking that any words have a "plain meaning". Somebody has to decide what that "plain meaning" is, and then we have a living document.
Sorry.
No, Tlaloc. Evolving interpretation is what makes the constitution a living document. See Oliver Wendell Holme's opinion in Missouri v. Holland, blah blah blah. Standard high school history stuff.
That's "Holmes's"
Hehe, good one, Tlaloc. Really.
To create a substantive change in our government or society, a "living" constitution requires only judicial fiat, the votes of just five people.
A dead constitution requires 2/3 of both houses of Congress and 3/4 of the states. Many more votes are required.
As a Democrat, surely you favor obtaining the bigger sample of the consent of the people before we go tearing up the cemetary.
"Tradition means giving a vote to most obscure of all classes, our ancestors. It is the democracy of the dead...Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man's opinion, even if he is our groom; tradition asks us not to neglect a good man's opinion, even if he is our father."---GK Chesterton
Yeah, you're wrong on this one (and not only this one), Tlaloc. The whole living constitution thing is a liberal shibboleth for changing the meaning of the document through interpretation. You know, evolving standards of decency, penumbras, and emanations from the text . . .
Because, of course, unlike liberals, conservatives have the magical ability to read the minds of the framers.
I'll give you an example. There is something in the constitution called the contracts clause. It clearly states that state and local governments may not impair the obligations of contract. There is a clear historical record of what that means. The Supreme Court obliterated the clause saying it conflicted with the "spirit of the founders." That's interpreting in such a way as to destroy original meaning.
The simple fact is, what LEGAL SCHOLARS mean and have always meant by calling the Constitution a living document is NOT that it can be amended but that it should be open to interpretations that allow it to be updated by the court instead of the amendment process. Tlaloc, you are stubbornly insisting you are right when you are completely wrong on this point. Hunter Baker's use of the term living document was correct.
Tlaloc, your refusal to admit you're wrong is really making you look bad. Do your own research, and just quietly walk away from this one. If you want look ignorant by misusing that term, then fine, but I'm not going to continue to argue with you about it, and I'm not going to do your research for you. Ask a high school teacher.
Yer killin' us, Tlaloc. It's like being locked in room where a guy keeps switching the light off and saying it's on. It ain't on, baby.
What's happening is that those of us having the conversation are using the language of the legal/public policy world and you are using a different, more prosaic language.
You're an I.T. guy. Imagine you were talking about coding with some buddies and I kept chiming in with talk about coding in the sense of a Little Orphan Annie alphanumeric codebreaker wheel. Not the same thing.
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