Posted on 07/13/2005 6:50:43 PM PDT by John Robertson
"This is dangerous wording, and inaccurate as well."
It's not inaccurate if that's what "some people say."
This is a speech, not a law school lecture.
That said, thanks for your post, it was fascinating.
bttp
It's not inaccurate if that's what "some people say." This is a speech, not a law school lecture.
So? Speak for yourself then John. Do you think the Constitutions basic principles can be altered by Amendment?
The Republicans can always point out that by filibustering or voting against Olsen, the Democrats are weak on National Defense, and supporters of terrorism.
In that case, Your Honors, John Marshall need never have sat upon that bench. --- "
Fascinating, and definitely merits some thought. I believe there are some flaws in his logic, however, but I'm too tired to explore that tonight, and there is one more reply to the originator of this thread that needs to be made. Perhaps later.
I wrote: "This is a speech, not a law school lecture."
You wrote: "So? Speak for yourself then John. Do you think the Constitutions basic principles can be altered by Amendment?"
But I WROTE the speech. This is one of those rare instances where I can have it both ways.
Now get to bed, you've been cranky all day!
Good speech. I prefer a lot of folks to Olson, though. Too milquetoast, genteel. Those guys get chewed up in the rough and tumble of the court, and are the ones most likely to turn to the dark side. Give me Luttig or someone who is a clear constitutionalist.
"Give me Luttig or someone who is a clear constitutionalist."
Done--your wish is granted!
Seriously, perhaps Luttig is superior to Olson. But Olson is thousand times superior to anyone liberals would prefer over him.
It appears that some of us here have inadvertently given offense to you. If I have, I apologise. When I posted my initial reply in post #15 I cut it short, due to the lateness of the hour, and did not finish what I had originally started to say. As the thread has evolved it appears I omitted an important part of my response.
When I suggested the importance of emphasizing that Constitutional Originalists are aware that the Constitution can be changed through the Amendment process I was not trying to be picky or lecture you. My intent was, in fact, to help you maximize the persuasiveness of your argument by addressing the same rhetorical and polemical factors that you did in post #24 when you stated "my goal was to have a psychologically and emotionally controlled speech build to an inevitable conclusion (therefore, supporting his choices)".
Here's my reasoning. One of the most common responses proponents of the "living Constitution" argument hit you with is something like "the Framers could never have imagined television, or space flight, or the Internet, or nuclear weapons, etc." all of which attempt to imply that the Constitution must be viewed as malleable because it is simply outdated and unsuitable as originally construed for our "modern" world.
It is undeniably true that the world has greatly changed since the Constitution was written. To deny this, and that the needs of the people are different from two hundred years ago just makes us look dumb. If Originalist proponents carelessly position themselves or allow their enemies to paint them as unwilling to accept change, when the average person knows in a common sense manner that the world has indeed changed, we just come across as stupidly rigid and out of step.
Rightly, or wrongly, this allows our opponents to "connect" with today's "man-on-the-street" who, sadly, does not generally know or understand our history or the founding principles upon which our government is based. They connect, and we are marginalized.
On the other hand, the average American is also aware that our government, and especially the Judiciary is dangerously out of control. We have a good opportunity to connect and win them to our side by pointing out to the typical Constitutionally uneducated "layman", who is the target demographic of this ideological contest, that those Founding Fathers were not only brilliant for their own time, but were far-seeing and wise enough to provide for the future needs of the nation by giving us a Constitution which, as originally written, already has the rules and mechanisms required to adapt to our changing needs, and to do it under the control of the People, by the People and for the People - not unelected, unaccountable and out-of-control judges.
I hope this clarification will be helpful.
That was extremely helpful. Very reasoned, very smart, very valuable. I should have gotten that in, now that I consider it. You're right: Laying out the Amendment process takes the main lib argument right off the table.
Too bad I've already turned in my draft to the Whitehouse (yeah, kidding).
Anyway, tarheel, thanks for the thoughtful response (lingering question: if it was too late earlier...how is this hour any better? No, you don't have to answer that.)
bttp
Yep, that's pretty much the perfect scenario.
See jimfree's response in post 27 for an excellently phrase response to replace your paragraph.
Yes, in a perfect world. I feel, though, that it will be an ugly fight.
While I agree that Scalia should be elevated to Chief Justice, I don't think it will happen. Thomas is much more likely, and the Democrats will have to walk a pretty thin tightrope if they mean to block the first nomination of a black Chief Justice.
Clarence Thomas, Condi Rice, Janice Rogers Brown, and other conservative blacks ARE NOT BLACK as far as the 'Rats are concerned!
Very true!! But I'm willing to bet that most American's don't see it the same way. The more they try to make that argument, the more the American people see them for the hypocrites that they are.
I like your bottom line.
"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton
The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and independent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.
The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.
Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:
"Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.
"The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)
Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."
In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.
What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.
The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved. . . . .
In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.
In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:
"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.
"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."
So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its explicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary. . . . .
A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.
Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.
They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:
"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."
At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.
Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."
Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.
. . . .
That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.
Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; Stedman & Lewis, Eds.) ISBN 0-937047-01-5 (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)
Marshall:
" --- That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. -- "
And one of the Peoples original acts was to establish the 2nd amendment, which clearly stated it was not to be infringed.
An Amendment to repeal the 2nd would be a total infringement of a basic principle, - thus unconstitutional.
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