Full Version: Is the Constitution sacred?
In a great many of the constitutional debates- there is an underlying theme that the constitution should or should not be literally interpreted, some say there is no ambiguity in the constitution according to thier particular point of view (an NRA member says there is no ambiguity in the second amendment, though there are many that would disagree with this, including just about every Supreme court decision, ever) and that judges are "judicial activists" for not following some point of law or another the poster doesn't agree with.
Reading the history of the creation of the constitution, and then later, the bill of rights, and how the constitution was formed- I get the distinct impression that ALL of the founding fathers found it to be a flawed document in one way or another- indeed, not dealing with slavery was very nearly a FATAL flaw-
some on this site get very angry at the thought that the constitution is a "living document" and others agree that it was meant to be changed at some point- though with great difficulty.
The first real serious challenge to the constitution was the "seperation of church and state"- which seemed to be more important to the founding fathers as an issue than slavery at the time!
On one hand you had the patrick henry's, that basically wanted a new flavor of theocracy, and on the other, you had the Madisons and Jefforsons, that pretty clearly wanted a secular state.
There is a great deal of anger and debate over the constitution today- and accusations of being a "judicial activist" whenever someone doesn't agree with the current decision.
So my question is this-
Do you feel the constitution is a near sacred or even sacred document, that needs to be followed to the letter, even though there is little agreement over what that particular letter is?
And
If you feel it is a "living document" - subject to change by both societal norms and judicial interpretation- why don't you feel as strongly towards the others about the constitution?
Reading the history of the creation of the constitution, and then later, the bill of rights, and how the constitution was formed- I get the distinct impression that ALL of the founding fathers found it to be a flawed document in one way or another- indeed, not dealing with slavery was very nearly a FATAL flaw-
some on this site get very angry at the thought that the constitution is a "living document" and others agree that it was meant to be changed at some point- though with great difficulty.
The first real serious challenge to the constitution was the "seperation of church and state"- which seemed to be more important to the founding fathers as an issue than slavery at the time!
On one hand you had the patrick henry's, that basically wanted a new flavor of theocracy, and on the other, you had the Madisons and Jefforsons, that pretty clearly wanted a secular state.
There is a great deal of anger and debate over the constitution today- and accusations of being a "judicial activist" whenever someone doesn't agree with the current decision.
So my question is this-
Do you feel the constitution is a near sacred or even sacred document, that needs to be followed to the letter, even though there is little agreement over what that particular letter is?
And
If you feel it is a "living document" - subject to change by both societal norms and judicial interpretation- why don't you feel as strongly towards the others about the constitution?
Do you feel the constitution is a near sacred or even sacred document, that needs to be followed to the letter, even though there is little agreement over what that particular letter is?
We have to live with the Constitution we have, and we have to make it work. Yes, we need to let it define our laws, and yes, we need to honor its meaning. I think that there is substantial agreement over the meaning of the Constitution. There are two problems that I'll address in my next answer.
If you feel it is a "living document" - subject to change by both societal norms and judicial interpretation- why don't you feel as strongly towards the others about the constitution?
No, I don't think of it as a living document that needs reinterpretation every few years. I see it as a high-level abstraction that leaves out most of the details. The details were meant to be filled in through amendments and case law. A prime example of this is the application of the First Amendment to Internet communications. Although the Internet is neither speech nor the press, we have successfully abstracted freedom of the press and freedom of speech to be freedom of expression, then been able to fill in the details as they arise. Someday when we have even weirder forms of communication, the First Amendment will still apply.
Many people object to this process of filling in the details on the claim that this involves creating new law that didn't exist in the original Constitution. The mistake here is the failure to appreciate the abstract nature of the Constitution and the clear intention that the details would be filled in at a later time. The European Constitution attempts to fill in all the details and is 400 pages in length and is utterly incomprehensible. This is the wrong way to write a constitution. The constitution should lay down the basic principles and let the courts fill in the details as the problems arise, using the basic principles for guidance. When the courts do this, many people howl that they're creating new law when they are actually deriving new results from old principles.
However, the courts have been forced to take this process too far because the Congress and the people are unwilling to use the second mechanism: the amendment process. The problem of abortion, for example, is simply too far removed from basic constitutional principles to yield any kind of rock-solid result. I think that Roe represents the best overall application of existing constitutional principles to the problem of abortion, but it's a long extrapolation indeed. The real solution is to hammer out an amendment that everybody can live with. NOT one that everybody likes, just one that everybody can live with. But the American people and their Congress are too gutless to take the bull by the horns and pass such an amendment. It's too easy to let the courts take the heat.
We have to live with the Constitution we have, and we have to make it work. Yes, we need to let it define our laws, and yes, we need to honor its meaning. I think that there is substantial agreement over the meaning of the Constitution. There are two problems that I'll address in my next answer.
If you feel it is a "living document" - subject to change by both societal norms and judicial interpretation- why don't you feel as strongly towards the others about the constitution?
No, I don't think of it as a living document that needs reinterpretation every few years. I see it as a high-level abstraction that leaves out most of the details. The details were meant to be filled in through amendments and case law. A prime example of this is the application of the First Amendment to Internet communications. Although the Internet is neither speech nor the press, we have successfully abstracted freedom of the press and freedom of speech to be freedom of expression, then been able to fill in the details as they arise. Someday when we have even weirder forms of communication, the First Amendment will still apply.
Many people object to this process of filling in the details on the claim that this involves creating new law that didn't exist in the original Constitution. The mistake here is the failure to appreciate the abstract nature of the Constitution and the clear intention that the details would be filled in at a later time. The European Constitution attempts to fill in all the details and is 400 pages in length and is utterly incomprehensible. This is the wrong way to write a constitution. The constitution should lay down the basic principles and let the courts fill in the details as the problems arise, using the basic principles for guidance. When the courts do this, many people howl that they're creating new law when they are actually deriving new results from old principles.
However, the courts have been forced to take this process too far because the Congress and the people are unwilling to use the second mechanism: the amendment process. The problem of abortion, for example, is simply too far removed from basic constitutional principles to yield any kind of rock-solid result. I think that Roe represents the best overall application of existing constitutional principles to the problem of abortion, but it's a long extrapolation indeed. The real solution is to hammer out an amendment that everybody can live with. NOT one that everybody likes, just one that everybody can live with. But the American people and their Congress are too gutless to take the bull by the horns and pass such an amendment. It's too easy to let the courts take the heat.
QUOTE
However, the courts have been forced to take this process too far because the Congress and the people are unwilling to use the second mechanism: the amendment process. The problem of abortion, for example, is simply too far removed from basic constitutional principles to yield any kind of rock-solid result. I think that Roe represents the best overall application of existing constitutional principles to the problem of abortion, but it's a long extrapolation indeed. The real solution is to hammer out an amendment that everybody can live with. NOT one that everybody likes, just one that everybody can live with. But the American people and their Congress are too gutless to take the bull by the horns and pass such an amendment. It's too easy to let the courts take the heat.
Let me just say I basically agreed with Erasmussimo up to this paragraph. The solution here, in the absence of a strong enough consensus to pass an amendment, was to leave the abortion issue to the states. I would really like to see that amendment, on abortion, that Operation Rescue and NOW could both live with. The founding fathers meant to make the Constitution difficult to change, they feared tyranny from a temporary majority.
Let me quote Ruth Bader Ginsberg
“by issuing a broad ruling that swept most state abortion laws off the books, the Court created an inherently vulnerable precedent that led to a backlash and short-circuited a liberal trend then under way in the states.”
Roe vs. Wade may have unified, to an extent state laws, it further divided the American people.
Much of the original intent of the framers of the Constitution can be derived from studying the notes on the constitutional convention and the arguments during the ratifying process. The Federalist Papers are a great source.
I tried raising a tenant's rent, in the middle of our leasing agreement, with the ole "the lease contract is a living document" ruse. He didn't fall for it. Time magazine recently referred to our retiring Supreme Court Justice as acting as one of Plato's guardians, rule by court oligarchy was not what the founders had in mind.
Let me quote Jefferson.
QUOTE
The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.
Looks like TJ was right.
One final quote:
QUOTE
"As a matter of fact and law, the governing rights of the States are all of those which have not been surrendered to the National Government by the Constitution or its amendments. Wisely or unwisely, people know that under the Eighteenth Amendment Congress has been given the right to legislate on this particular subject1, but this is not the case in the matter of a great number of other vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features. In these, Washington must not be encouraged to interfere." - Franklin Delano Roosevelt, 1930
What happened?
FDR was referring to prohibition in the above quote. Prohibition would no longer require an amendment to be enacted.
Do you feel the constitution is a near sacred or even sacred document, that needs to be followed to the letter, even though there is little agreement over what that particular letter is?
Sacred is an awfully strong word.
The Constitution is the highest law of the land. It is the last word and it is meant to insure that our democratic rebublic functions as it was intended to function.
Obviously, it was drafted broadly to encompass situations the framers never imagined. But it also did not anticipate a document that could morph from decade to decade to fit the preferences of the ruling elite. It anticipated that the constitution would need to be amended from time to time. The way the Constitution is interpreted these days, I am hardpressed to think of an instance where that amendment process might be necessary.
We have a duty to require our Supreme Court to adhere to an established set of criteria and principles when interpreting our Constitution so as not to cross the line into judicial legislation. I have suggested some factors to be balanced by the court in other threads. We get into trouble when one or another of the factors is given too much weight.
Sacred is an awfully strong word.
The Constitution is the highest law of the land. It is the last word and it is meant to insure that our democratic rebublic functions as it was intended to function.
Obviously, it was drafted broadly to encompass situations the framers never imagined. But it also did not anticipate a document that could morph from decade to decade to fit the preferences of the ruling elite. It anticipated that the constitution would need to be amended from time to time. The way the Constitution is interpreted these days, I am hardpressed to think of an instance where that amendment process might be necessary.
We have a duty to require our Supreme Court to adhere to an established set of criteria and principles when interpreting our Constitution so as not to cross the line into judicial legislation. I have suggested some factors to be balanced by the court in other threads. We get into trouble when one or another of the factors is given too much weight.
QUOTE(Erasmussimo @ Jul 18 2005, 01:07 AM)
[b]However, the courts have been forced to take this process too far because the Congress and the people are unwilling to use the second mechanism: the amendment process.
The problem with this is that if the Supreme Court justices feel that they are forced to rule on situations which are clearly NOT spelled out in the constitution, then they have ignored the constitution.
Sure, there are lots of ambiguities, and it's getting rather dated, and congress needs to do something about that.
Or maybe not...
The constitution is what it is. The framers would probably be shocked to find that so little of it has actually been changed after so many years. They would probably be even more shocked to find out that this "Supreme Court" they whistled up out of thin air had taken to manufacturing aspects of the constitution which are clearly absent from the text of the constitution.
Why hasn't the congress utilized the amendment process?
The short answer is that they haven't because they haven't. It's there for them to use if they can come to terms, or it is there if they can't come to terms. In the meantime, the constitution is still there to be read by anybody who cares to read it.
Too bad it doesn't mean much these days.
QUOTE(Oyaji @ Jul 22 2005, 09:55 PM)
The problem with this is that if the Supreme Court justices feel that they are forced to rule on situations which are clearly NOT spelled out in the constitution, then they have ignored the constitution.
Sure, there are lots of ambiguities, and it's getting rather dated, and congress needs to do something about that.
Sure, there are lots of ambiguities, and it's getting rather dated, and congress needs to do something about that.
I'd like to direct your attention to my post number 57 on this page: posting, and the subsequent discussion of the concept there presented. I think it provides a point you may find clarifying.
QUOTE(Erasmussimo @ Jul 23 2005, 02:13 PM)
QUOTE(Oyaji @ Jul 22 2005, 09:55 PM)
The problem with this is that if the Supreme Court justices feel that they are forced to rule on situations which are clearly NOT spelled out in the constitution, then they have ignored the constitution.
Sure, there are lots of ambiguities, and it's getting rather dated, and congress needs to do something about that.
Sure, there are lots of ambiguities, and it's getting rather dated, and congress needs to do something about that.
I'd like to direct your attention to my post number 57 on this page: posting, and the subsequent discussion of the concept there presented. I think it provides a point you may find clarifying.
I'm sorry, but I fail to see the relevance. Perhaps if you were to copy the relevant section of my previous reply and the section of your post on the aforementioned article and then show some connection, then maybe I could understand what it is you are trying to say.
As it is, it appears to me that the two are unrelated.
Do you feel the constitution is a near sacred or even sacred document, that needs to be followed to the letter, even though there is little agreement over what that particular letter is?
"Sacred" is the wrong word. The Constitution is not a sacred or nearly sacred document, that must be held in reverence. It is not a perfect document, that must be a model for all others. It is not a comprehensive document, negating the need for any other federal or state laws. However, it is the highest law of the land, and must be respected as such. If something in the Constitution has become outdated by changed mores, a different international scene, or some technological innovation, then it should be amended. The clause to amend it is there for specifically that purpose. The Constitution should not be flouted, not because it is sacred or perfect, but because it is the law. To rewrite the law situationally, paying no heed to procedure, is all but the definition of anarchy.
If you feel it is a "living document" - subject to change by both societal norms and judicial interpretation- why don't you feel as strongly towards the others about the constitution?
I believe that some individual concepts are subject to change by societal norms - for example, the press can include news-based weblogs, or a search can include tapping of a phoneline. However, the basic intent of any given clause of the Constitution cannot be expanded upon. The protections from search, seizure, and self-incrimination do not guarantee a universal ban on all levels of government interfering in private life in any way, as has been held true in many cases. One thing I find very ironic is the fact that the case most indicated as an example of a "living Constitution" holds as a key point of its argument that no law may be passed that would not have been justified in 1868.
"Sacred" is the wrong word. The Constitution is not a sacred or nearly sacred document, that must be held in reverence. It is not a perfect document, that must be a model for all others. It is not a comprehensive document, negating the need for any other federal or state laws. However, it is the highest law of the land, and must be respected as such. If something in the Constitution has become outdated by changed mores, a different international scene, or some technological innovation, then it should be amended. The clause to amend it is there for specifically that purpose. The Constitution should not be flouted, not because it is sacred or perfect, but because it is the law. To rewrite the law situationally, paying no heed to procedure, is all but the definition of anarchy.
If you feel it is a "living document" - subject to change by both societal norms and judicial interpretation- why don't you feel as strongly towards the others about the constitution?
I believe that some individual concepts are subject to change by societal norms - for example, the press can include news-based weblogs, or a search can include tapping of a phoneline. However, the basic intent of any given clause of the Constitution cannot be expanded upon. The protections from search, seizure, and self-incrimination do not guarantee a universal ban on all levels of government interfering in private life in any way, as has been held true in many cases. One thing I find very ironic is the fact that the case most indicated as an example of a "living Constitution" holds as a key point of its argument that no law may be passed that would not have been justified in 1868.
QUOTE(CruisingRam @ Jul 17 2005, 08:28 AM)
In a great many of the constitutional debates- there is an underlying theme that the constitution should or should not be literally interpreted, some say there is no ambiguity in the constitution according to thier particular point of view (an NRA member says there is no ambiguity in the second amendment, though there are many that would disagree with this, including just about every Supreme court decision, ever) and that judges are "judicial activists" for not following some point of law or another the poster doesn't agree with.
Reading the history of the creation of the constitution, and then later, the bill of rights, and how the constitution was formed- I get the distinct impression that ALL of the founding fathers found it to be a flawed document in one way or another- indeed, not dealing with slavery was very nearly a FATAL flaw-
some on this site get very angry at the thought that the constitution is a "living document" and others agree that it was meant to be changed at some point- though with great difficulty.
The first real serious challenge to the constitution was the "seperation of church and state"- which seemed to be more important to the founding fathers as an issue than slavery at the time!
On one hand you had the patrick henry's, that basically wanted a new flavor of theocracy, and on the other, you had the Madisons and Jefforsons, that pretty clearly wanted a secular state.
There is a great deal of anger and debate over the constitution today- and accusations of being a "judicial activist" whenever someone doesn't agree with the current decision.
So my question is this-
Do you feel the constitution is a near sacred or even sacred document, that needs to be followed to the letter, even though there is little agreement over what that particular letter is?
And
If you feel it is a "living document" - subject to change by both societal norms and judicial interpretation- why don't you feel as strongly towards the others about the constitution?
A. I think that this document is "sacred" in the sense that it defines the core principles of our nation and the underlying concepts that define our laws, the scope of government, and establish that fact that human rights are not "granted" by the government.
B. The constitution IS a living document. But not in the way that liberals mean when they state that fact. The constitution was designed as an open document that could be changed, modified, and amended over time. Yet, this process was designed to be inherently difficult so that these changes wouldn't be the result of fashion, fad, emotional reaction, or any other willy nilly impulse to "change". Where we went off the rails is when we allowed (yes, allowed) the judiciary to snatch more than their 1/3 allotted power and short-circuit the process of changing by the constitution by creating legislation from the bench. Under their extremely broad interpretation of what "interpretation" itself means, they were allowed to drive the agenda favored by the social elites and thus twist the constitution into something barely recognizable.
The great danger in that approach is that when the literally meaning of the text of that document, and the intent of those who wrote it is completely ignored, the document essentially means NOTHING. Thus, the waiting with bated breath on which justice is picked because the premise now is that the court decides the hard issues, not the people.
That is a social cop-out on many levels. What the legislative branch should do is start exerting their constitutional authority over activist judges. There should be calls for impeachment whenever a justice goes outside the scope of the constitution and creates legislation from the bench. It's strange. The legislative and the executive are at constant "war" over their powers and the separation of their powers. The fight over executive branch documents (Bolton and soon to be Roberts) is just the latest in that long saga. Yet, the legislative branches sit back and let the courts run roughshod over THEIR powers.
Why? I think historically it's been out of expediency. It's been more convenient for them to let the courts take the "hard" cases so that they can sit back, with plausible deniability, and say that "it wasn't their doing" either way.
I think a loophole that the founders of this country didn't consider is the blatant cowardice of the legislative branch and their unwillingness to make the hard choices which may alienate a section of their constituencies and thus cost them their jobs.
QUOTE(Oyaji @ Jul 23 2005, 12:25 AM)
Perhaps if you were to copy the relevant section of my previous reply and the section of your post on the aforementioned article and then show some connection, then maybe I could understand what it is you are trying to say.
Very well, here's what you wrote:
QUOTE
The problem with this is that if the Supreme Court justices feel that they are forced to rule on situations which are clearly NOT spelled out in the constitution, then they have ignored the constitution.
and here's the releveant section of my posting:
QUOTE
Imagine Leonardo da Vinci preparing a pencil sketch study for a painting he intends to create. His pencil sketch leaves out all the details of the image, but nails down all the critical structural elements of his composition. At this point, Michelangelo turns over portions of the work to his apprentices -- this was a common practice during that period. His "constitution" for the painting does not specify all the shading, the precise positions of the fine lines, or many of the colors. He leaves that for the apprentices to fill in, knowing that his sketch-constitution has laid down all the fundamentals that they need to know to finish the work, and further knowing that his apprentices are all skilled in the art of painting. Then Michelangelo is called away by the Pope and doesn't return. So the apprentices (Supreme Court justices) must figure out for themselves how to fill in the details of the painting. They come to a portion of the image that is blank in the sketch. What to do? Apprentice Hayleyanne declares that, since the master did not specify anything, they have no basis to proceed and must leave that portion of the painting unpainted. Another apprentice points out that there's a clean curvature to the nearby portion of the painting, and that curvature should be extended to the blank area; that there is a shadow falling across another part of the painting that appears to be the shadow of a horse, and if so, then there should be a corresponding bit of shadow in the blank area; that the laws of good composition, when applied to the color balance of the painting, call for a crisp red tone in the upper portion of the blank area, and so forth. In other words, this other apprentice comes up with a reasonable conjecture as to the master's intentions based on the relationship of the blank area to other portions of the painting. Apprentice Hayleyanne objects that this is conjectural -- and she is correct -- but it is equally true that the conjecture does fit in quite nicely with the rest of the painting.
You see justices ignoring the Constitution; my metaphor suggests that they are filling in details left blank by the Founders, and that this filling-in process operates under reasonable, justifiable rules.
QUOTE
You see justices ignoring the Constitution; my metaphor suggests that they are filling in details left blank by the Founders, and that this filling-in process operates under reasonable, justifiable rules.
We've had this discussion before, so I will respectfully maintain that we are going to have to agree to disagree on this particular subject.
My position is, as it has been in the past, is that state's rights takes precedence when it comes to the filling the blank holes left by the constitution.
QUOTE(Oyaji @ Jul 24 2005, 05:45 AM)
QUOTE
You see justices ignoring the Constitution; my metaphor suggests that they are filling in details left blank by the Founders, and that this filling-in process operates under reasonable, justifiable rules.
We've had this discussion before, so I will respectfully maintain that we are going to have to agree to disagree on this particular subject.
My position is, as it has been in the past, is that state's rights takes precedence when it comes to the filling the blank holes left by the constitution.
The constitution has no blanks. What is not specifically enumerated in the constitution has been left up to the people and the states to decide.
The constitution has some very specific limitations on government. It's very limited by design. The problem has been that the courts (due to the legislative branch's cowardice) have added to the text of the constitution when they had no right to do so.
This isn't a matter of painting a ceiling in a church. That metaphor implies that we look to the constitution for guidance on EVERY matter, big and small.
The courts are there to settle disputes. Where they overstep at the USSC is in creating constitutional precedent in areas where that is not required. They should refuse to take cases that don't have specific constitutional issues at stake. They should recommend that the matter be taken back to the legislatures where it can be decided, through legislation, in most cases.
With respect to Roe v. Wade, they should have refused to even take that case. The USSC should only take cases that directly relate to the constitution and the bill of rights.
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