Posted on 05/06/2005 11:46:42 AM PDT by Libertarianize the GOP
The Living Constitution is dead
Judicial recognition of a Living Constitution causes the very problem that the idea of a living Constitution is supposed to solve. Proponents of a Living Constitution want a more flexible document. When the Supreme Court issues a decision the result is to lock in current opinion and to forbid opinions from evolving in the future.
Justice Kennedy along with four Justices recently declared that it is cruel and unusual punishment to execute a person for a crime they committed as a minor. Justice Kennedy discovered an "Evolving Standard" that he perceives to be a long and enduring trend. Perceiving a trend and then jumping out in front of where society is heading works only for correctly identified trends. If on the other hand the perceived trend were only the current cycle then establishing a marker near the peak would prevent appropriate readjustment. Court precedent makes changing rules extremely difficult and removes all flexibility in applying an evolving standard if the standard continues to evolve.
Supreme Court review of the constitutionality of law is based on the idea that a lesser law like those written by a legislature should not conflict with higher law like the Constitution or with Enduring Principles like those enshrined in the Declaration of Independence. The real problem is in elevating an evolving standard to the same level of law as an Enduring Principle. Legislatures should incorporate evolving standards into legislative law. Evolving standards should not take precedents over well-established laws. Evolving Standards represent a consensus opinion of Citizens and Citizens can influence legislators to implement an evolving standard into current law. A handful of Supreme Court Justices have decided that some legislatures weren't appropriately implementing a currently evolving standard. Now the Supreme Court has forever forbidden legislatures from even addressing the issue of whether juveniles should be executed and locked in the current "Evolving Standard" as an enduring long-standing principle. Citizens no longer have the ability to influence the law through their elected representatives.
Judicial Precedent slowly locks a Living Constitution into place and the original flexibility of legislatures writing law to reflect public opinion is removed.
Well, this part is understated to say the least.
Proponents of a Living Constitution want a more flexible document.
The Constitution IS a living document and provides a process for it's change.
What the "proponents of a living constitution" really want is a legislative document.
You are obviously correct but the resulting rigidity you talk about is the very result desired by the liberals and their activist judges!
Calling the Constitution a "living document" is like calling a moth-infested overcoat a "living garment".
Of course. Accusing the opposition of doing what you do is a typical liberal tactic. Reversing liberal activism back to original intent will be called all kinds of names. That's fine as long as the change occurs.
The trouble is, all such change is temporary. Someday, the liberals will regain power and reverse course again. The only protection is to change the structure of the system: term limits for justices and a Congressional override.
"Enduring Principles" which are not in the Constitution can not be used by judges to justify in their rulings- in fact doing so is the essence of "Living Constitutionalism".
It's bad for the congress and the president to pass laws that conflict with those principles, but, under our Constitution, only the people can correct them.
If enduring principles are not protected then what was the purpose of the Ninth Amendment then?
It is impossible for the Ninth Amendment to be interpreted as a grant of power to the federal judiciary over the people. It is solely a limit on federal power. Note that it protects 'majoritarian' rights too BTW.
Thanks for your comments. I have a few liberal friends and have been toying with this idea as an argument. I like to make them have to think. Judicial precedent removes flexibility and conflicts with their belief that the Constitution needs flexible interpretation. Putting ideas, even this rough draft, into writing helps the next time I have a discussion on the topic.
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