The Unconstitutional Living Constitution Theory

[jillian]

So you think you know more than 200 years of Justices about what the Constitution means and how it should be construed?

okie dokie.

I think they call that delusions of grandeur.

Ya know I REALLY want to see your Law Degree. The Constitution is clear that ONLY 3 methods exist to CHANGE it. Court discretion is not one of the 3 methods. Further Courts can not MAKE legislation only rule on what it means or does not mean.

Please be so kind as to explain why the Constitution only lists 3 methods to change it if Courts can change it every decade or two by fiat?

you know, not only are you a bully, but you're not even good at it, ijit.

If the Constitution does not adapt to changing mores and changing facts, kindly explain the difference between Brown v Bd of Ed and Plessy v Ferguson.

I'll wait.

 

[Darkwind]

So you think you know more than 200 years of Justices about what the Constitution means and how it should be construed?

okie dokie.

I think they call that delusions of grandeur.

Ya know I REALLY want to see your Law Degree. The Constitution is clear that ONLY 3 methods exist to CHANGE it. Court discretion is not one of the 3 methods. Further Courts can not MAKE legislation only rule on what it means or does not mean.

Please be so kind as to explain why the Constitution only lists 3 methods to change it if Courts can change it every decade or two by fiat?

You really don't think the authors of the Consitution wanted it to grow with the people? To me it was written in a way that it could be open to intrepretation, so for one it would not become outdated.

If you have no fixed set of principles and rules, there really is little growth. Only chaos as the mob vies for its own supremacy.

The authors of th Constitution did provide a way for growth, but set up the system so that real growth is required. Any other way is nothing more then altering our founding documents for the whim of a fad.

 

[lawbuff]

Actually, Brown v. Board overruled; Cumming v. Board of Education, 1899.

 

[Luissa]

Ya know I REALLY want to see your Law Degree. The Constitution is clear that ONLY 3 methods exist to CHANGE it. Court discretion is not one of the 3 methods. Further Courts can not MAKE legislation only rule on what it means or does not mean.

Please be so kind as to explain why the Constitution only lists 3 methods to change it if Courts can change it every decade or two by fiat?

You really don't think the authors of the Consitution wanted it to grow with the people? To me it was written in a way that it could be open to intrepretation, so for one it would not become outdated.

NO if it were open to interpretation why LIST the only 3 ways to alter it. 3 ways that require a lot of work. It was not meant to be altered by the mores of the people but by amendments written and voted on by the people through their representatives. NOT Judges.

Thomas Jefferson felt that it was up to each branch to intrepret the Constitution, not just the Supreme Court. Which would make it even more of a living documant than it is today.

 

[RetiredGySgt]

Actually, Brown v. Board overruled; Cumming v. Board of Education, 1899.

Which has nothing to do with changing the meaning of the Constitution. If you want new powers , new functions, new abilities in the document, you have ao AMEND it.

 

[Luissa]

Actually, Brown v. Board overruled; Cumming v. Board of Education, 1899.

Which has nothing to do with changing the meaning of the Constitution. If you want new powers , new functions, new abilities in the document, you have ao AMEND it.

Actually it does, one made segegration legal under Constitutional law, and the other made it illegal.

 

[jillian]

Actually, Brown v. Board overruled; Cumming v. Board of Education, 1899.

ummmmmmm...

the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. [n5] The doctrine of[p491] "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. [n6] American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the "separate but equal" doctrine in the field of public education. [n7] In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged. [n8] In more recent cases, all on the graduate school[p492] level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

Brown v. Board of Education

And when scholars discuss the case, they don't talk about the history of Cummings. They write like this:

From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation



From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation

 

[jillian]

Actually, Brown v. Board overruled; Cumming v. Board of Education, 1899.

Which has nothing to do with changing the meaning of the Constitution. If you want new powers , new functions, new abilities in the document, you have ao AMEND it.

Actually it does, one made segegration legal under Constitutional law, and the other made it illegal.

thank you. it's pretty plain english.

 

[lawbuff]

Actually, Brown v. Board overruled; Cumming v. Board of Education, 1899.

And when scholars discuss the case, they don't talk about the history of Cummings. They write like this:

From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation



From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation

I understand all that, I was quoting from a source I have bookmarked, see entry 89;

The Constitution of the United States of America

 

[Navy1960]

We are talking about the constitution are we not? If so then we are talking about the construction of the constitution. The constitution provides a method by which it can be added too and even taken away from, and that is the Amendment process. One added to the constitution then we are talking about the application of those laws withing the construction of the constitution. The supreme Court and other courts use the constitution as the mechanism by which it affrims, strikes down, or even in some cases modifies laws according to the construction of the constitution. This so caled living document theory is more a living "law" theory as laws are modified with each generation to suit society based on the construction of the constitution. Free Speech for example is not modified in the document itself, rarther the practical applications of that in laws from generation to generation. Someone spoke on civil rights laws, based on the construction of the 14th Amendment. While previous laws were struck down in some states perhaps as a result the 14th Amendment remains the same. This is call constructionism which is really how our constitution works as it in and of itself is NOT a living document.

 

[jillian]

Actually, Brown v. Board overruled; Cumming v. Board of Education, 1899.

And when scholars discuss the case, they don't talk about the history of Cummings. They write like this:

From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation



From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation

I understand all that, I was quoting from a source I have bookmarked, see entry 89;

The Constitution of the United States of America

That's nice.

 

[jillian]

We are talking about the constitution are we not? If so then we are talking about the construction of the constitution. The constitution provides a method by which it can be added too and even taken away from, and that is the Amendment process. One added to the constitution then we are talking about the application of those laws withing the construction of the constitution. The supreme Court and other courts use the constitution as the mechanism by which it affrims, strikes down, or even in some cases modifies laws according to the construction of the constitution. This so caled living document theory is more a living "law" theory as laws are modified with each generation to suit society based on the construction of the constitution. Free Speech for example is not modified in the document itself, rarther the practical applications of that in laws from generation to generation. Someone spoke on civil rights laws, based on the construction of the 14th Amendment. While previous laws were struck down in some states perhaps as a result the 14th Amendment remains the same. This is call constructionism which is really how our constitution works as it in and of itself is NOT a living document.

You have it right. But people aren't really wrong when they say it's a living, breathing document either. I don't think anyone really means that it can say whatever you feel like.

 

[Navy1960]

We are talking about the constitution are we not? If so then we are talking about the construction of the constitution. The constitution provides a method by which it can be added too and even taken away from, and that is the Amendment process. One added to the constitution then we are talking about the application of those laws withing the construction of the constitution. The supreme Court and other courts use the constitution as the mechanism by which it affrims, strikes down, or even in some cases modifies laws according to the construction of the constitution. This so caled living document theory is more a living "law" theory as laws are modified with each generation to suit society based on the construction of the constitution. Free Speech for example is not modified in the document itself, rarther the practical applications of that in laws from generation to generation. Someone spoke on civil rights laws, based on the construction of the 14th Amendment. While previous laws were struck down in some states perhaps as a result the 14th Amendment remains the same. This is call constructionism which is really how our constitution works as it in and of itself is NOT a living document.

You have it right. But people aren't really wrong when they say it's a living, breathing document either. I don't think anyone really means that it can say whatever you feel like.

I sort of thought it would come as no surprise to you that I am a constructionist jillain lol. However, I think the word "living document" is tossed around a lot to the point where some believe that constitution can just be changed to mean anything we want it too. I am constantly surprised by the number of times that people go about trying to secure rights not in the constitution through the legislative process when the amendment process there for that exact purpose. Take healthcare as a right for example, I submit that if people that advocated for healthcare as "universal" really wanted that in this nation then all they need to do is start the amendment process going and hope that the states ratify it. Then most of the argument on healthcare as a right ceases to exist from a constitutional standpoint because it then becomes part of the constitutions construction.

 

[lawbuff]

And when scholars discuss the case, they don't talk about the history of Cummings. They write like this:

From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation



From Plessy v. Ferguson to Brown v. Board of Education: The Supreme Court Rules on School Desegregation

I understand all that, I was quoting from a source I have bookmarked, see entry 89;

The Constitution of the United States of America

That's nice.

Why do you always have to come across as sarcastic?

 

[jillian]

I understand all that, I was quoting from a source I have bookmarked, see entry 89;

The Constitution of the United States of America

That's nice.

Why do you always have to come across as sarcastic?

Well, perhaps if you hadn't contradicted something you knew to be correct, I wouldn't have.

 

[lawbuff]

That's nice.

Why do you always have to come across as sarcastic?

Well, perhaps if you hadn't contradicted something you knew to be correct, I wouldn't have.

I did not conradict anything. I stated the actual overruled case was Cummings, and according to my source, it is.

That was not the reason, you just can't stand to be shown up in any way, so whatever.

 

[PoliticalChic]

Why bother with a Supreme Court then?

To treat the Constitution like a fundamentalist treats the Bible was never the original intent

Article V.

 

[ihopehefails]

So you think you know more than 200 years of Justices about what the Constitution means and how it should be construed?

okie dokie.

I think they call that delusions of grandeur.

Ya know I REALLY want to see your Law Degree. The Constitution is clear that ONLY 3 methods exist to CHANGE it. Court discretion is not one of the 3 methods. Further Courts can not MAKE legislation only rule on what it means or does not mean.

Please be so kind as to explain why the Constitution only lists 3 methods to change it if Courts can change it every decade or two by fiat?

You really don't think the authors of the Consitution wanted it to grow with the people? To me it was written in a way that it could be open to intrepretation, so for one it would not become outdated.

That is why they created the amendment process to change the constitution and yes Jefferson did want the branches of government to interpret the constitution but only to ascertain what their actions should do. Since the court system has the functioning power to punish other people their 'interpretation' decides how the law will get dulled out. So they are really deciding what their actions are based on what the constitution wanted them to do.

The courts decide cases based on the law, the executive executes their power based on the law, and the congress enacts legislation based on the law. Each branch is interpreting the constitution but only to decide what its powers are.

 

[jillian]

I sort of thought it would come as no surprise to you that I am a constructionist jillain lol. However, I think the word "living document" is tossed around a lot to the point where some believe that constitution can just be changed to mean anything we want it too. I am constantly surprised by the number of times that people go about trying to secure rights not in the constitution through the legislative process when the amendment process there for that exact purpose. Take healthcare as a right for example, I submit that if people that advocated for healthcare as "universal" really wanted that in this nation then all they need to do is start the amendment process going and hope that the states ratify it. Then most of the argument on healthcare as a right ceases to exist from a constitutional standpoint because it then becomes part of the constitutions construction.

No. I'm not surprised.

Perhaps "living document" is tossed around a bit too much. But maybe that's in response to the pretend "originalists" who think the Constitution should be read like fundamentalists read their bible. "Activist judges" is another phrase that's thrown around a lot more than it should be. To my mind, "activist" is when the Court undertakes to overturn legislative action. "Conservatives" have done this far more than "liberals".

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html

There is also a study on the issue which I can't find right now and don't have the time to locate.

And I understand what you say with respect to "rights" but in reality, the document really is flexible enough for the Court to ask certain simple questions such as: "does this particular thing go to equal protection of a group of people?" "does the act in question fall under the the protection of the constitution if looked at as a whole"? and "if the thing in question is denied, does it concern a fundamental right (e.g., marriage) and does government have a good reason for impacting that fundamental right?"

It seems pretty clear that amendment of the constitution was supposed to be an arduous process. I can't imagine that the founders felt that people should wait around to enforce basic, humane things until the wheels of government ground around long enough to address them.

 

[PoliticalChic]

Ya know I REALLY want to see your Law Degree. The Constitution is clear that ONLY 3 methods exist to CHANGE it. Court discretion is not one of the 3 methods. Further Courts can not MAKE legislation only rule on what it means or does not mean.

Please be so kind as to explain why the Constitution only lists 3 methods to change it if Courts can change it every decade or two by fiat?

You really don't think the authors of the Consitution wanted it to grow with the people? To me it was written in a way that it could be open to intrepretation, so for one it would not become outdated.

If you have no fixed set of principles and rules, there really is little growth. Only chaos as the mob vies for its own supremacy.

The authors of th Constitution did provide a way for growth, but set up the system so that real growth is required. Any other way is nothing more then altering our founding documents for the whim of a fad.

The idea of a 'living Constitution" is predicated on an evil public being restrained by an elite intelligentsia, i.e. progressives.

“It has been close to 100 years now that the majority of people teaching in American colleges and universities have agreed with Woodrow Wilson, one of the founders of the Progressive movement and the first to write explicitly that the Declaration of Independence is obsolete, and that we need to liberate the Constitution from the Declaration's restraints. This liberation leads to the idea of a "living Constitution," characterized by constant change or progress. Absolute truth, to the extent that ordinary people still believe in it, obstructs change or progress—which is why President Obama refers to it, in the passage I read, as tyrannical. But if change or progress is the rule, who is to determine what version of change or progress is good? And the logical problem here—as any Hillsdale student could tell you—is that once you deny the existence of absolute truth, the definition of "good" becomes subjective and the only standard of behavior is what we want—"we," in the political sense, meaning the government or bureaucracy. It reduces politics not to right, but to force. That is why there is this bullying spirit about our government today, and why so many Americans are worried.”
https://www.hillsdale.edu/news/imprimis/archive/issue.asp?year=2009&month=12