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Denniston looks at a claim that interpreting an old document, like the U.S. Constitution, is a doomed attempt to apply outdated legal principles.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 ...
I can see after perusing several responses I would be preaching to the choir so let me part with this from the Constitution.
Article 1. Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government …
One major purpose of the Constitution was to establish LIMITS to democracy. That way, 51% of the voters could not vote to send the other 49% to the gas chambers.
With Democracy being one of the many forms of collectivism (and the Founding Fathers hated) that have been tried around the world and failed, we should look to the upcoming holiday of Thanksgiving as a celebration of the repudiation of it.
John Stossel: Socialism Almost Ruined Thanksgiving
http://www.youtube.com/watch?v=lbjpzh087uU
Thanksgiving: Overcoming Socialism
http://www.youtube.com/watch?v=igdCrePWTF4
The Pilgrims and Property Rights: How our ancestors got fat & happy
http://www.youtube.com/watch?v=66QdQErc8JQ
The 16th and 17th amendments ruined the original intent. The Progressives planted the seeds of destruction 100 years ago.
Sorry!
Article 1. 4. Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government…
A lot of ‘things’ happened about the same time .. the creation of the Fed and the progressive income tax come to mind as well,, what followed? a war, a depression, a war, hmmmmm ..
looks like the progre$$ives be seeing their chickens come home to roost, on our dime.
I find it difficult to be patient with this sort of criticism because there really isn't any substance in it. What sort of things does this commentator think "irrelevant"? That the federal government should consist of three parts whose functions and interrelations are laid out in the first three Articles? There's nothing dated in that, it's as spare and timeless as a mathematical proposition. As such, does it matter in the least whether it was written by rich (they weren't) white men or impoverished Hottentots? It's a plan. That's all it is.
Moreover, it is a perfectly changeable plan no matter when you happen to be living so long as you follow the Amendment procedure and have votes sufficient to swing it. Very little about it is etched in granite. And 1787 is hardly an "unimaginably different and distant world". By historical standards, it's yesterday. And there is little mystery to which principles the document was intended to encompass because its authors took considerable pains to set them down.
I think the real unwritten objection to the Constitution in the eyes of these critics lies not in how it's written but what it really is: an inconvenient limitation on the powers of the federal government. Such limitations are a bar to ideologues who scratch or con their way into political office and conclude that gives them the ability to do whatever the hell they please, the sitting administration being a case in point.
In fact, the ones baying most loudly about the "irrelevance" of the document appear to be the ones whose aims are most hindered by its existence: the statist, the autocrat, the tyrant, the totalitarian. That was as true in 1787 as it is today. The intention to rule is truly timeless, and what must be protected is the bounds drawn out to it by free men and women.
"Running the country" was probably "running the war machine."
I recall reading David Brinkley's book "Washington Goes To War," in which Brinkley recalls how Washington DC grew from a sleepy swamp town into the center of government that it is today because of WWII.
Once the war was over, all those bureacracies had to find something else to do.
-PJ
In all fairness, the founding fathers did not operate in a vacuum, and were very familiar with history.
This changes the value of the argument to “We know more about the philosophy of government than did the founding fathers *and everyone else* going back to before Alexander the Great.” All told, political philosophy has been in detailed development for at least 3,000 years.
Remember it is the ancient Greeks who first developed the formal concept of democracy. ‘Demokratia’ “popular government,” from ‘demos’ “common people”.
But industrialization changed all that, right? Hardly.
So when you examine the political philosophy of the constitution, it is easy to ignore the trappings of the times and see the obvious conclusions within, that are just as true today as they were then, a modest 250 years ago.
To start with, after 1500 years of royals brawling with each other, it was pretty easy to conclude that government no longer needed a noble class. This means that “the people” rule the government.
Importantly, the nobles had always claimed that their right to rule had come from heaven, so their laws were also certified by heaven, and anybody who rejected them were not just criminals, but sinners.
So the founding fathers were clear that the constitution was written by men, for men, and could be changed by men without annoying heaven. This is all the separation of church and state really amounted to, not purging religion from government.
Next, they well knew that any rules or laws put to paper will be evaded before the ink is dry, so the way around this was to create competing bodies of people, with somewhat different motivations, who could veto other groups in a balanced way. Thus the constitution has a bunch of these balances set up.
Not just the three branches of government; but the balance between the national government, the state governments, and the people; the balance between populous and small population states; the only truly democratic body being the house of representatives, with the states appointing senators and the electoral college selecting the POTUS, who appoints federal judges, with the approval of the senate, and thus the states, again.
They were also smart enough to make the legislative process contentious and difficult, so that the default is that new laws will fail. It is better to have no laws than bad laws.
Enter the Progressives. Arrogant, self-important and ignorant, they are filled with themselves and always believe they are smarter than thousands of years of people who lived before.
They are caught up in the arrogance of adolescence. That their ideas are better, and that everyone just needs to get out of their way for them to prove it. They have nothing but contempt for history and knowledge, and insist that a simple to understand wrong idea is always better than a complex and articulate plan carried out over years.
Yup. Of course, the nation-state itself evolved in Europe for the very simple reason that it was apparently the most effective type of government for waging war. Political entities that were less effective disappeared.
IMO it was probably necessary to have a powerful central government to wage WWII and the Cold War. As can be seen by considering the consequences of losing either of those wars. What killed us was that the Cold War was so long that we got used to a big government.
“With respect to the two words ‘general welfare’, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” “The powers delegated by the proposed Constitution to the federal government are few and defined . . . to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”
— James Madison, the father of the U.S. Constitution, fourth U.S. President
“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
— Thomas Jefferson, third U.S. President
“Mr. Speaker: I have as much respect for the memory of the deceased, and as much sympathy for the suffering of the living, if there be, as any man in this House, but we must not permit our respect for the dead or our sympathy for part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has not the power to appropriate this money as an act of charity. Every member on this floor knows it. We have the right as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right to appropriate a dollar of the public money.”
— Congressman Davy Crockett
“I cannot find any authority in the Constitution for public charity.”
— President Franklin Pierce
I never met General Welfare, tho I have heard of his many exploits. Much as McClellan muddied the Civil War for both sides , it seems Welfare has a bit of mud as well.
I hear next to nothing of our good fellow General Welfare, graduated the same class as Custer or so I may have heard uhhhh,, I only hear of his successes , Social Security, Medicaid, Medicare, The Great Society, A New New Deal,, iPhone, GUbamint chess in a squeeze tube..
Who knows what will be the legacy of a GUbamint and a masses of people who could fail so miserably and yet, feeeeel so goooood about themselves?
Just look to the past.. And not as some would. Forward.
de Tocqueville facepalm
Good column. Thanks.
Well, “destroying” isn’t quite the right word, but the Constitution was meant to PREVENT the degree of democracy that would let transient majorities of stupid or malevolent people vote away MY rights (or at least the legal protection for them). This moron’s first paragraph illustrates perfectly why that protection is a really good idea.
I don’t want to flame, but on the point of Slavery, remember that Slavery was then a tolerated human institution, as it had been from the beginning of recorded history; present and accepted in every civilization and age. We see its evil now and consider it obvious, but that’s more hindsight than innate wisdom.
The Constitution is our fundamental document, our rulebook. It is the greatest political document, in conjunction with the Declaration, ever conceived by man. We’d have a much stronger republic (not “democracy”) if we followed it more closely.
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