Posted on 11/12/2013 9:34:16 AM PST by NormsRevenge
Lyle Denniston looks at a claim that interpreting an old document, like the U.S. Constitution, is a doomed attempt to apply outdated legal principles.
THE STATEMENT AT ISSUE:
“Professor Neuborne describes this dysfunctional democracy very well, but he does not give the real reason for that dysfunction – the reverence for the United States Constitution. Each of the Supreme Court’s iniquities he lists is based on the interpretation by five of nine high priests of increasingly irrelevant documents written by wealthy white men in an unimaginably different and distant world.”
...
WE CHECKED THE CONSTITUTION, AND…
One of the fundamental issues that deeply divides the nine Justices now serving on the Supreme Court is the proper way to interpret the Constitution’s meaning for today’s world. Some of the Justices believe that the key is the “original meaning” of the document – that is, as it was understood in 1787. Others believe that the document is a “living Constitution” that is adaptable to changing times and thus acquires new meaning from time to time.
No one expects that disagreement ever to be finally resolved. At the same time, all of the Justices agree that the Constitution embodies enduring principles, and that it is the duty of judges in this country to apply them. Even a sincere devotion to those principles, though, is bound to produce disagreements about their contemporary meaning.
What is often misunderstood about the process of constitutional reasoning is that the Constitution itself does not provide all of the necessary answers to any legal problem that turns on enduring principles. No document, and certainly no legal document, can always be understood by its literal meaning. Words are means of expressing ideas, and the same words can mean different things to different judges.
(Excerpt) Read more at news.yahoo.com ...
Democracy is mob rule. We are a Constitutional Republic.
One is always the converse antithesis of the other.
I agree with Dead Corpse that there is basically nothing wrong with the Constitution. The main reason that the Constitution gets questioned is that the corrupt, unconstitutionally big federal government doesn’t want constitutonally ignorant voters to find out that the main purpose of the Constitution is to limit the federal government’s powers.
I don’t believe the Constitution has anything to do with ‘democracy’.
‘Democracy’ is the term that the moderates and liberals have cottoned to which they believes somehow connotes this miasma in which we now reside. They think it’s such a blessed thing that they want to make certain it’s exported to those countries we’ve invaded that don’t want it.
Our democracy means we get a complete jackass as president and another one as Chief Justice and an entire retinue of jerks who prance about the floors of Congress in front of C-Span cameras convincing themselves that they’re representing the people who were stupid enough to pull a lever and get them there!
Our ‘democracy’ means that we have an onerous IRS and a completely defiled military. It means we listen to the sentences of those we dare call allies. But then all of our conversations and writings are being read and noted by a faceless bureaucracy.
Those of us lucky enough might be able to clear out of this democratic paradise, but those of us who are forced to remain here in a 50 state gulag and better get busy trying to rip out everything that’s transpired since 1912.
If anyone is confused about what the Founding Fathers meant when they designed the Constitution all they need to do is read the federalist papers.
For later
Yes.
The issue is IMHO, one that cuts to the foundation of belief or the basis of laws.
“Rights granted by man or a Creator”
Rights granted be man have been gaining more and more acceptance over the past 100 years, to be certain, while rights granted by a Creator have lost ground.
It is ironic that both require “faith” in our fellow man.
In the case of faith in government run by people, it seems to have devolved into fear and insecurity.
As for the case of rights by a Creator, the faith is in ones self and certainty of human nature.
Liberals are fundamentally insecure. They are children that have found a political voice. They don’t do the hard work or address the difficult questions that have historically advanced society.
Relativism and their fear of being judgmental is at the top of their concerns.
They don’t trust people that can clearly define an issue.
“Is devotion to the Constitution destroying democracy?”
Gosh, I certainly hope so. This isn’t supposed to be a “democracy.”
Federalist, anti-Federalist and Constitution ping. Good article and good discussion.
I agree with all of what you said in principle, but, let’s face, the Constitution is simply too difficult to amend with the present rules. With a lower threshold for getting amendments ratified, we wouldn’t have to worry so much about wrongheaded SCOTUS decisions doing it by judicial fiat. And (I’m sure I’ll get flamed for pointing this out, but what the heck) if the Framers were so darned infallable, and the Constitution so ingenious, then why did we have to fight the bloodiest war in our history to settle the slavery issue? And, on a less dramatic note, why have we tolerated a SCOTUS that regularly strikes down federal and state legislation, when that power is not given to it anywhere in the Constitution’s text?
Not since the 17th amendment, which created three term congressmen in the garb of senators. There is no difference between the populist rat demagogues of both the house and senate.
Whatever term one wishes to apply, it should include "democratic."
The Federalists were right . . . we'd be better off if the "Bill of Rights" had never been adopted.
The US Constitution was not written by G-d and does not possess the same impeccability (unless you are a mormon).
Duh, merely a comparison.
I’m not worried about “democracy”. Mob rule stinks anyway. It’s the republic that I’m concerned about. That’s why we need to get back to the Constitution.
The constitution’s original intent is fine for today. If something different is needed, then the appropriate action is to make an amendment to it, and have it ratified, not to invent stuff because it is more modern.
"Posterity! you will never know how much it cost the present generation to preserve your freedom! I hope you will make a good use of it. If you do not, I shall repent in Heaven that I ever took half the pains to preserve it." - John Adams, Letter to Abigail Adams, 1777
"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
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"The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order...."
-Justice Joseph Story
Justice Story's words pay tribute to the United States Constitution and its Framers. Shortly before the 100th year of the Constitution, in his "History of the United States of America," written in 1886, historian George Bancroft said:
"The Constitution is to the American people a possession for the ages."
He went on to say:
"In America, a new people had risen up without king, or princes, or nobles....By calm meditation and friendly councils they had prepared a constitution which, in the union of freedom with strength and order, excelled every one known before; and which secured itself against violence and revolution by providing a peaceful method for every needed reform. In the happy morning of their existence as one of the powers of the world, they had chosen Justice as their guide."
And two hundred years after the adoption of this singularly-important document, praised by Justice Story in one century and Historian Bancroft in the next and said by Sir William Gladstone to be "the most wonderful work ever struck off at a given moment by the brain and purpose of man," the Constitution of 1787 - with its Bill of Rights - remains, yet another century later, a bulwark for liberty, an ageless formula for the government of a free people.
In what sense can any document prepared by human hands be said to be ageless? What are the qualities or attributes which give it permanence?
America's Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves - their beliefs, customs, and traditions, and in the practical aspects of politics and government. It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.
"The foundation of every government," said John Adams, "is some principle or passion in the minds of the people." The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is "instituted for those who live under it ... it ought, therefore, to be so constituted as not to be dangerous to liberty." And the American government was structured with that primary purpose in mind - the protection of the peoples liberty.
Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, "the sacred fire of liberty" might depend "on the experiment intrusted to the hands of the American people" That experiment, they hoped, would serve as a beacon of liberty throughout the world.
The Framers of America's Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals. As Jefferson wisely observed:
"History, by apprising the people of the past, will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views."(Underlining added for emphasis)
The Constitution, it has been said, was "not formed upon abstraction," but upon practicality. Its philosophy and principles, among others, incorporated these practical aspects:
Recognition that love of liberty is inherent in the human spirit.
Recognition of Creator-endowed, unalienable, individual rights.
Recognition that meaningful liberty is possible only in the company of order and justice. In the words of Burke: "Liberty must be limited to be possessed."
Recognition that in order for a people to be free, they must be governed by fixed laws that apply alike to the governed and the government.
Recognition that the Creator has not preferred one person or group of persons as rulers over the others and that any government, in order to be just, must be from among the great body of the people and by their consent - that the people have a right to self-government.
Recognition of human weakness and the human tendency to abuse power; therefore, of the need to divide and to separate the power granted to government; to provide a system of checks and balances; and to make government accountable to people at frequent intervals.
Recognition that laws, to be valid, must have their basis and limit in natural law - that law which, as Cicero wrote, "is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite."
Recognition of the need for structuring a government of laws, not of men, based on enduring principles and suitable not only to the age in which it is formed, but amendable to different circumstances and times, without sacrificing any of the three great concepts of Order, justice, or Liberty.
Recognition that the right to ownership of property is a right so compelling as to provide a primary reason for individuals to form a government for securing that right.
Recognition of the need for protecting the individual rights of each citizen, rich or poor, majority or minority, and of not allowing the coercive power of government to be used to do collectively that which the individual could not do without committing a crime.
Recognition of necessity for incentive and reward as impetus for achievement and growth.
Recognition of the need for a "Supreme Law of the land" a written constitution which, consistent with its idea of the sovereignty of the people, would provide its own prescribed amendment process, thereby circumventing any potential unconstitutional changes by any of the branches of government without the people's consent.
The Constitution of the United States of America structured a government for what the Founders called a "virtuous people - that is, a people who would be able, as Burke put it, to "put chains on their own appetites" and, without the coercive hand of government, to live peaceably without violating the rights of others. Such a society would need no standing armies to insure internal order, for the moral beliefs, customs, and love for liberty motivating the actions of the people and their representatives in government - the "unwritten" constitution - would be in keeping with their written constitution.
George Washington, in a speech to the State Governors, shared his own sense of the deep roots and foundations of the new nation:
"The foundation of our empire was not laid in the gloomy age of ignorance and superstition; but at an epocha when the rights of mankind were better understood and more clearly defined, than at any former period.... the treasures of knowledge, acquired by the labors of philosophers, sages, and legislators, through a long succession of years, are laid open for our use, and their collective wisdom may be happily applied in the establishment of our forms of government."
And Abraham Lincoln, in the mid-1800's, in celebrating the blessings of liberty, challenged Americans to transmit the "political edifice of liberty and equal rights" of their constitutional government to future generations:
"In the great journal of things happening under the sun, we, the American people, find our account running ... We find ourselves in the peaceful possession, of the fairest portion of the earth....We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them - They are a legacy bequeathed us, by a once hardy, brave, and patriotic...race of ancestors. Theirs was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights, 'tis ours only, to transmit these...to the latest generation that fate shall permit the world to know...."
Because it rests on sound philosophical foundations and is rooted in enduring principles, the United States Constitution can, indeed, properly be described as "ageless," for it provides the formula for securing the blessings of liberty, establishing justice, insuring domestic tranquillity, promoting the general welfare, and providing for the common defense of a free people who understand its philosophy and principles and who will, with dedication, see that its integrity and vigor are preserved.
Justice Joseph Story was quoted in the caption of this essay as attesting to the skill and fidelity of the architects of the Constitution, its solid foundations, the practical aspects of its features, and its wisdom and order. The closing words of his statement, however, were reserved for use here; for in his 1789 remarks, he recognized the "ageless" quality of the magnificent document, and at the same time, issued a grave warning for Americans of all centuries. He concluded his statement with these words:
"...and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by virtue, public spirit, and intelligence of the citizens."
Our ageless constitution can be shared with the world and passed on to generations far distant if its formula is not altered in violation of principle through the neglect of its keepers - THE PEOPLE.
Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part VII: ISBN 0-937047-01-5
Well, we ceased being a federal republic a hundred years ago. With the 17th Amendment we became a democratic republic, and doomed to a totalitarian fate. The framers never considered two popularly elected houses of the legislature, nor the political Frankenstein called the US senate. Six year popular terms? No way!
They knew very well from experience that overly democratic governments were dangerous to liberty.
The 17th amendment must go . . . or else.
Thanks for posting that.
There are two particular items, vital to freedom, and on which the constitution is based:
the right to property, and the rights of the minority against the majority. These ideas are essential to freedom.
Democracy, in which the “good of the people is paramount”, is just an intermediate step toward fascism.
Now one thing these “reformers” might want to consider: if the constitution is obsolete, then so is the Union. Secession anyone?
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