Throwing Off The Progressive Yoke

[PoliticalChic]

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

 

[Old Rocks]

One Justice's opinion, nothing more.

 

[Common Sense]

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.

 

[Intense]

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.

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.

 

[martybegan]

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.

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.

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.

 

[dilloduck]

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.

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.

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.

and done randomly I might add, often ignoring the unintended consequences.

 

[Common Sense]

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.

 

[Intense]

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.

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.

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.

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.

 

[PoliticalChic]

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.

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....

 

[CrusaderFrank]

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"

 

[PoliticalChic]

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"

And progressive judges don't hide the 'assault.'

a. “Alarmingly, [Elena] Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.” Elena Kagan: Could she defend the Constitution's purpose? - CSMonitor.com

b. “…Justice Oliver Wendell Holmes, Jr., who sat on the Supreme Court from 1902 to 1932. “All my life I have sneered at the natural rights of man,” Holmes wrote, reflecting his view that the individual rights venerated by the Founders have no objective validity and therefore no role in discerning the Constitution’s meaning.” Ibid.

 

[Common Sense]

so in a sense you are using both the living on constitution and traditional constitution definition. you just see the interpretation of the constitution differently than others.

if it were a firm document, it would have been written so as to be the supreme law of the land and unchangeable in any aspect. there would not have been a way to ammend it nor any vague wording to allow for interpretation.

im sure that no one here agrees that every exact word of the constitution should be taken literally. such freedom of speech (ie yelling fire in a crowded room is not considered free speech).

see but i think the fact that the constitution is a malleable document goes to its genius. there are many arguments to be had about the individual interpretation of specific clauses in the constitution. but that fact that the founding fathers allowed a provision for it to be changed shows us that they knew that they did not know or understand everything.

there were many individual things specifically left out of the constitution that have come to mold this country. (amendments are not taken into account in this list, although they are mentioned)
(Things That Are Not In the U.S. Constitution - The U.S. Constitution Online - USConstitution.net)

The Air Force
Congressional Districts
The Electoral College
Executive Order
The right to privacy
The right to travel
The right to vote
The separation of church and state
The Separation of Powers Clause
Immigration
Slavery

these are just to name a few. (more in the link, as well as an explanation of each)

are we then to assume that the founding fathers either 1) did not consider any of these items, or 2) purposely chose to exclude them and leave that interpretation up to it people or 3) they left them out and did not want them to be considered at all?

progress is a natural part in the advancement of any society. you are absolutely allow to disagree with the direction that certain policies have taken us, but its the constitution that affords us the ability to have those opinions and speak our minds without fear of imprisonment by the government.

i think the better way to think about this is to suggest alternative to these "progressive" changes and law and thus argue what the affects of those changes would have been vs. what actually happened.