Posted on 01/26/2014 10:30:18 AM PST by ProgressingAmerica
IMHO, One of the worst unintended consequences of the mischaracterization of the US Constitution as 'living' is that it urges a response to what is the readily-available/exact opposite.
The problem is, the United States Constitution is not a dead constitution. To illustrate, I would like to make a list of dead constitutions for you in the hopes that it will help set up what may be a proper comparison.
The Constitution of Rome, is a dead constitution.
The Solonian Constitution, is a dead constitution.
The Constitution of Prussia, is a dead constitution. (All three of them)
The Constitution of Burma, is a dead constitution.(First two.)
The Constitution of The German Empire as well as the Weimar Constitution, are both dead constitutions.
The point being, they are dead because they are obviously dead. Nobody pays attention to them, nobody lives under them. They are historical show pieces at this point, nothing more.
Yesterday I put a video lecture online highlighting what I believe to be a very useful observation - that the British Constitution is a living and breathing document. This observation came as part of the things I post, but it came to a head for a summer paper that I wrote for my last history class. I wrote about that paper in my prior here so I don't need to re-hash it. But two paragraphs from that paper I would really like to lift and put on display.
If the American Constitution is not living and breathing, then what is it? Well first, just because it is not “living” does not mean that it is “dead”. If you want to see an example of a dead constitution, look to Rome. While Rome's “constitution” was uncodified similarly to what Britain has, another example of a dead constitution would be the Kingdom of Prussia. Constitutions are legal documents, they do not live and breathe in the way that Wilson tried to describe, but considering how Wilson laid out his concept of a living document, we can comfortably say that Britain's model fits the mold as if that is what he was describing all along.While constitutions do not “live” along these lines, if the societies that they are tied to die or become eclipsed, such as Rome and Prussia, then the documents are as dead as the societies that used to be subject to them. If the American Constitution were ever to die, then that means that the American People will have repealed and replaced her and reverted back to a more monarchical form. To put this simply, the opposite of a living and breathing document is an amendable document; not living, not dead; amendable. Our Constitution with it's amendment process and high bars is in and of itself proof that it's not a living and breathing document, it's an amendable document.
With living beings, the opposite of "living" is "dead".
With legal documents, the opposite of "living" is "amendable".
Forgot the link.....
http://progressingamerica.blogspot.com/2014/01/an-amendable-constitution-is-opposite.html
!
This isn't true.
If you look at the old Medea-Persian laws they were unamendable/unrepealable, which came to be a "plot point" in the book of Daniel, where he was put in the lion's den because he prayed (which was a trap wrought by his enemies) even though the King wished it wasn't so (and couldn't sleep all that night because of it).
So there are different axes on that are needed to describe the law, at least two: live/dead (how applicable it is) and variable/constant (the ease of impossibility of changing the law). {There could also be a third axis for applicability: general/specialized. (i.e. how uniform the law treats people.)}
OneWingedShark: I am not sure that we are not on the same page here. I hope some of this will clarify how I read your reply.
(I think)I understand fully what you’re getting at and I agree. When progressives say that the Constitution is “living and breathing”, they are saying that it is so ‘variable’(to use your word) that the enumerated amendment process is entirely unnecessary. Judges can just change it on a whim, or Obama can do it by decree.
The American Constitution is certainly ‘live’(to use another of your words, because it applies to us as citizens) but it is not living. Judges do not, or at least should not, have the right to change the words outside of the amendment process.
This is why I made the point that the British Constitution is living and breathing; it is so variable that it only requires a 50% majority to amend.
If I/we are still slightly misunderstanding, I look forward to your reply.
Yes; it probably is just a matter of terminology.
Thanks for the clear-up/explanation.
This may be helpful:
(This is a page about the British Constitution)
Chapter 13: The changing constitution
- No extraordinary features are laid down in Parliament for the passage or amendment of measures of constitutional law- All bills have to go through the same stages in both Houses of Parliament and are subject to simple majority voting
- As such, the traditional constitution is, formally, a flexible constitution
British Parliament says:
14. In states with codified constitutions, constitutional amendment usually requires a legislative super-majority. Until recently, the concept of a supermajority was foreign to the British parliamentary tradition. However the Fixed-term Parliaments Act 2011 introduced a super-majority requirement for early dissolution, and this may be considered a precedent, albeit arguably indirect, for a general application of this mechanism to major constitutional legislation. However , t here are some obvious difficulties with such a proposal. It would seem perverse if constitutional legislation enacted on a simple majority (as is the case with all current constitutional statute) were to require a super-majority before it could be amended or repealed. On the other hand, if a supermajority were required only to enact or amend future legislation, the courts would be confronted with two different categories of constitutional statute. Then there is the question of the status of the statute which imposed a general requirement for a super-majority : if this were passed on a simple majority, would future parliaments regard it as binding?
It is my understanding that the Fixed Term act does not go into effect until 2015, so that means that next year the British Constitution becomes less living and breathing than it currently now is. Also, that does not seem written as well as it could be. So "minor" constitutional amendments are still not super-majority?
But what's a "minor" amendment anyways? I guess that's how it is with true living and breathing constitutions. Everything is up for debate and interpretation.
By far the most important thing to note is what I underlined in blue - which comes right from the horses mouth - that all current constitutional statutes are passed on a simple majority.
Perhaps the best way to think about the Constitution is as a legal contract between the federal government, the states, and the people. Like a contract, it can’t be arbitrarily modified by one or another of the parties, not legitimately. There are written into this “contract” methods of modifying it when such modification is agreed upon by the parties referred to in the methods. But “living?” In no relevant sense of the word.
One syndicated columnist (if I remembered who, I’d give him/her credit) has called the Constitution “enduring.” I think that is an accurate characterization.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.