Posted on 12/02/2005 2:08:34 PM PST by cougar_mccxxi
It's fashionable these days for folks to describe the U.S. Constitution as a "living document."
Yup -- "living," as in something that breathes. Being written more than 200 years ago by a bunch of men who could never have imagined the incredible social and technological changes in America today, it's reasonable to postulate that the Constitution would have to change in order to stay viable and applicable in a modern world. Right?
Wrong, says Supreme Court Justice Antonin Scalia.
The "living document" concept drives him up the proverbial marble wall. And although he concedes that it would be hard to persuade Americans to accept the notion of a "dead Constitution," he prefers to think of it as an enduring Constitution.
Scalia, who was in town Wednesday to kick off the Eldon B. Mahon Lecture Series for the Texas Wesleyan University School of Law, calls himself an "originalist" when it comes to interpreting the 211-year-old document. That means when he is deciding the constitutionality of a legal case that has come before the nation's highest court, he looks to what was allowed or what was forbidden when the Founding Fathers drafted the document.
(Excerpt) Read more at uhuh.com ...
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imo
"When someone says the Constitution is a "living document", what they really mean is that it is dead."
Or they want to make it so.
They like to refer to it as a living document so that they can abort it.
"it's reasonable to postulate that the Constitution would have to change in order to stay viable and applicable in a modern world. Right?"
Anyone who can say such a thing can't be argued with or persuaded or be reasoned with because he is self deluded. He WON"T see that stripping the words in a legal document destroys any force authority of the law because THAT IS WHAT HE WANTS. (Also he wants to be the sole arbiter of what is 'reasonable' or a 'given'.
As it happens, in an THE INTELLECTUAL historical timeframe the constitution WAS written in the modern era. 'Modern', as most people use the term is a reference to TECHNOLOGY. Our understanding of human nature or applied law doesn't transcend that of the founders.
Judge Scalia is a jewel in the US's crown. One can only hope that we could have a full SCOTUS of men like them who "get it!"
LOL! That's what Bush shoulda said when debating Gore: "My opponent says that the Constitution is 'living,' but don't worry - if you elect him he will abort it!"
Liberal intelligence is revealed when you realize they believe documents are alive but babies inside the womb are not.
Not true. The Constitution has the very process for change described within it! It's called a constitutional amendment. Our elected representatives may pass one, with the required number of votes, at any time.
Ironic, isn't it, that so-called Democrats refuse to trust a democratic process for altering the Constitution. They'd much rather use the judicial oligarchy to effectively change it instead.
"When someone says the Constitution is a "living document", what they really mean is that it is dead."
Exactly. Living like an oak, not a chameleon.
We the people of the United States, in order to . . . secure the blessings of liberty to . . . our posterity, do ordain and establish this Constitution for the United States of America.The Constitution is "enduring," as Justice Scalia puts it, because at its inception it was designed for the present and the future. It was designed to endure - and in large measure it has. Pending further developments in the Senate . . .
SCALIA: Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
imo
The difference is not as easy to discern as some may imagine. The difference is the difference between a liberal and a conservative.
The democrats and the liberals prefer to bring about change by re-interpreting the Constitution. This is what they mean when they say the Constitution is a "living document". The republicans and conservatives prefers to bring about change by the constitutional process of amending the Constitution.
The democrats and the liberals flexible view of the supreme law of the land cause the words in the Constitution to be without meaning. The republicans and the conservatives view of the supreme law of the land cause the words in the Constitution to accurately reflect what Americans want for their nation.
Wrong, says Supreme Court Justice Antonin Scalia.
Well not quite. The founding fathers did imagine that times might change and that the Constitution might need "tweaking" to keep up with the changes in society. That's why they wrote this:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate
Article. V., Constitution for the United States.
Think guns (arms) should be banned? Fine, repeal the second amendment with another amendment. Well, you might want to repeal the ninth amendment as well if that is your aim. You also might want to invest heavily in body armor, armored cars, and to turn your house into a heavily fortified castle... with no guns of course. :)
Saying the Constitution is a "living document" is like saying a moth-infested overcoat is a "living garment".
The Constitution should change with the times. But its meaning as enforced should at all times be in agreement with its meaning as written.
If courts are free to ignore the written text for any purpose, they are free to ignore it for any purpose.
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