Throwing Off The Progressive Yoke

Discussion in 'Law and Justice System' started by PoliticalChic, Dec 7, 2010.

  1. PoliticalChic
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    PoliticalChic Diamond Member

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    The progressives have pushed their liberty-restricting and economically destructive policies by using the judiciary, realizing that they could not get the American people to ratify their agenda.

    Chief Justice William Rehnquist wrote the following expaining why the 'living' Constitution is harmful and dangerous.

    1. Based on the 'living' Constitution, nonelected members of the federal judiciary may address themselves to a social problem simply because other
    branches of government have failed or refused to do so. These
    same judges, responsible to no constituency whatever, are
    nonetheless acclaimed as “the voice and conscience of contemporary
    society.”

    a. It is based upon the proposition that federal
    judges, perhaps judges as a whole, have a role of their own,
    quite independent of popular will, to play in solving society’s
    problems.

    2. . Judges then are no longer the keepers of
    the covenant; instead they are a small group of fortunately
    situated people with a roving commission to second-guess
    Congress, state legislatures, and state and federal administrative
    officers concerning what is best for the country. Surely
    there is no justification for a third legislative branch in the federal
    government, and there is even less justification for a federal
    legislative branch’s reviewing on a policy basis the laws
    enacted by the legislatures of the fifty states.

    3. . [T]he living Constitution, however,
    suggests that if the states’ legislatures and governors, or
    Congress and the President, have not solved a particular social
    problem, then the federal court may act. I do not believe that
    this argument will withstand rational analysis. Even in the face
    of a conceded social evil, a reasonably competent and reasonably
    representative legislature may decide to do nothing. It may
    decide that the evil is not of sufficient magnitude to warrant
    any governmental intervention. It may decide that the financial
    cost of eliminating the evil is not worth the benefit which
    would result from its elimination. It may decide that the evils
    which might ensue from the proposed solution are worse than
    the evils which the solution would eliminate.


    4. The frustration of the citizenry, who had thought themselves
    charged with the responsibility for making such decisions,
    is
    well expressed in Abraham Lincoln’s First Inaugural Address:

    [T]he candid citizen must confess that if the policy of the
    government, upon vital questions affecting the whole people,
    is to be irrevocably fixed by decisions of the Supreme
    Court, the instant they are made, in ordinary litigation between
    parties in personal actions, the people will have
    ceased to be their own rulers,
    having to that extent practically
    resigned their government into the hands of that eminent
    tribunal.

    5. . A further difficulty with …the notion of the living
    Constitution is that it seems to ignore totally the nature of political
    value judgments in a democratic society. If such a society
    adopts a constitution and incorporates in that constitution
    safeguards for individual liberty, these safeguards indeed do
    take on a generalized moral rightness or goodness.
    They assume
    a general social acceptance neither because of any intrinsic
    worth nor because of any unique origins in someone’s idea
    of natural justice but instead simply because they have been
    incorporated in a constitution by the people.

    a. The laws that emerge after a typical political struggle in
    which various individual value judgments are debated likewise
    take on a form of moral goodness because they have been
    enacted into positive law.


    6. It is even more difficult for either
    a single individual or indeed for a large group of individuals to
    succeed in having such a value judgment embodied in the
    Constitution. All of these burdens and difficulties are entirely
    consistent with the notion of a democratic society. It should not
    be easy for any one individual or group of individuals to impose
    by law their value judgments upon fellow citizens who
    may disagree with those judgments. Indeed, it should not be
    easier just because the individual in question is a judge.


    7. . the living Constitution, in the
    last analysis, is a formula for an end run around popular gov-
    ernment.
    To the extent that it makes possible an individual’s
    persuading one or more appointed federal judges to impose on
    other individuals a rule of conduct that the popularly elected
    branches of government would not have enacted and the voters
    have not and would not have embodied in the Constitution,
    … the living Constitution is genuinely
    corrosive of the fundamental values of our democratic society.

    http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf
     
    Last edited: Dec 8, 2010
  2. Old Rocks
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    Old Rocks Diamond Member

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    One Justice's opinion, nothing more.
     
  3. Common Sense
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    Common Sense BANNED

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    Rehnquist also stepped down from the bench in 2005 while Bush was still in office and this text was actually written by him in 1976.

    "The Living Constitution is a concept in American constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.[1]
    While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary. The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.
    A prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the Democratic candidate, Al Gore.[2] One of its most vocal critics is Supreme Court Justice Antonin Scalia.[3]"

    the constitution was never meant to be absolute, otherwise the founding fathers would never have allowed for provisions to change it.
     
  4. Intense
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    Intense Senior Member

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    The Constitution Is the Supreme Law of the Land. It is absolute within the Authority of It's limited Reign. We were provided an Amendment Process for New Construction, Legislative Authority within the scope of Recognized Power, it implement, and A Court to define, clarify, and mediate. Good try though. ;)
     
  5. martybegan
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    martybegan Gold Member

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    In other words, the use of the living constitution concept allows judges basically to amend it themselves, rather than forcing proponents of a certain position to either legislate it, or get it entered as an amendment. It is basically an end run around the process, not part of it.
     
  6. dilloduck
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    dilloduck Diamond Member

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    and done randomly I might add, often ignoring the unintended consequences.
     
  7. Common Sense
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    Common Sense BANNED

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    so youre all saying that as times change, technology evolves and opinions grow, we would technically need to rewrite the constitution every few years to keep up with the changing times?

    did the founding fathers foresee planes, the internet, global warming, pollution, and cell phones? if the constitution was simply only to be interpreted on a an exact word basis, then we would have had to write all new sections of it to govern the changes that have occurred in this world.
     
  8. Intense
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    Intense Senior Member

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    Marty, I don't support or condone what the Court has done. It has taken the trust of Judicial Review and violated it, through imagination and construction. The Court's role in part is to connect the dots in application of existing law, to bring continuity and strength, clarity of purpose, Judicial Review was not intended to connect dots that aren't there. The trust has been, and continues to be abused.
     
  9. PoliticalChic
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    PoliticalChic Diamond Member

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    Welcome to the board.

    No, the Founders used the general language that allow laws that would accomodate changes such as you suggest.

    The point that you are missing is that the gross changes to our Constitution, that allow the ever increasing size of government, the ever-growing imposition into every aspect of individuals' lives, should be accomplished via the amendment process.

    It is not by accident that this has been done. If you read the writings of Woodrow Wilson and FDR, you will find the thesis that the Constitution should be dismissed...

    1. "Justly revered as our great Constitution is, it could be stripped off and thrown aside like a garment, and the nation would still stand forth in the living vestment of flesh and sinew, warm with the heart-blood of one people, ready to recreate constitutions and laws." … Woodrow Wilson

    If you want to understand how the Constitution was rewritten in the 20th century by the Progressive movement, the place to start is with Woodrow Wilson."
    Obama and Woodrow Wilson JellyToast

    2. "Since the Constitution could not officially be "stripped off and thrown aside," Wilson endorsed the emerging, Darwinian-inspired theory of a "living Constitution." For Wilson, this did not mean creatively applying original principles to situations the Framers had not imagined: It meant negating those principles whenever they stood in the way of the march of History, as manifested in the latest promising idea."From Hegel to Wilson to Breyer | The Weekly Standard

    3. FDR, a master politician, who left his mark on our nation, in many propitious directions. But one glaring error diminished FDR...
    FDR, in trying to apply the equality voiced by the Constitution to economics, had to modify the free-market system: capitalism, with its focus on individual wealth, not equality of wealth.

    While this idea may be subtle, it has a dramatic effect in the direction our nation takes: there are two views of the Constitution: the rights of man vs. the rights of men. FDR fought for the latter, the primacy of the collective over the view of the Founders.

    4. Progressive Roscoe Pound and others changed the view of the law. “Pound fought the notion that an unchanging and inflexible Natural Law formed the basis for the Common Law. He did believe that some constant principles existed in the common law, particularly ones dealing with methods, to which he gave the name "taught legal tradition." Pound firmly believed that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth.” Roscoe Pound legal definition of Roscoe Pound. Roscoe Pound synonyms by the Free Online Law Dictionary.

    As a result of Pound's work, the Constitution was no longer considered the basis of jurisprudence, but rather students in law school study the thinking of othe judges.

    And that leads back to the OP....
     
  10. CrusaderFrank
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    CrusaderFrank Diamond Member

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    The malleability of the US Constitution into a jello blob is the Schwerpunkt of the Progressive assault on America.

    A firm Constitution would never allow for ObamaCare, or any of the other disasters the US Federal government has seen fit to undertake under the every expanding "Commerce Clause"
     

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