The Unconstitutional Living Constitution Theory

[ihopehefails]

The living constitution theory believes that the constitution changes due to the politics of the times and interpretations are treated as legally powerful as the actual text which is why most proponents of the living constitution quote case law alone and never the actual words in the document. It allows the constitution to be distorted by the opinions of the justices on the bench thus changing it from what the creators of the actual law intended.

The constitution clearly states that the only way it can be altered is by the amendment process which can be done three ways. Two of them are by the legislative branch of the federal government and the third is by a conventions of the states. These are the only constitutional ways you can alter constitution's meaing so when people believe that the courts can alter it by their 'interpretation' they are assuming that the courts have powers that the constitution does not give them.

This makes living constitution theory unconstitutional since the meaning of the document can't be altered by the opinion of the courts. It can only be altered by the amendment process and that power is only granted to the legislative branch. They are the ones that create the law while the courts judge cases by what has been created by the legislative branch.

 

[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.

 

[Luissa]

The living constitution theory believes that the constitution changes due to the politics of the times and interpretations are treated as legally powerful as the actual text which is why most proponents of the living constitution quote case law alone and never the actual words in the document. It allows the constitution to be distorted by the opinions of the justices on the bench thus changing it from what the creators of the actual law intended.

The constitution clearly states that the only way it can be altered is by the amendment process which can be done three ways. Two of them are by the legislative branch of the federal government and the third is by a conventions of the states. These are the only constitutional ways you can alter constitution's meaing so when people believe that the courts can alter it by their 'interpretation' they are assuming that the courts have powers that the constitution does not give them.

This makes living constitution theory unconstitutional since the meaning of the document can't be altered by the opinion of the courts. It can only be altered by the amendment process and that power is only granted to the legislative branch. They are the ones that create the law while the courts judge cases by what has been created by the legislative branch.

I personally think Jefferson would not agree with.


I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Thomas Jefferson

 

[lawbuff]

The constitution clearly states that the only way it can be altered is by the amendment process which can be done three ways. Two of them are by the legislative branch of the federal government and the third is by a conventions of the states. These are the only constitutional ways you can alter constitution's meaing so when people believe that the courts can alter it by their 'interpretation' they are assuming that the courts have powers that the constitution does not give them.

I do not agree. Take for instance the FFC clause:


...Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof..

Is this not a direct constitutional authority for Congress to change the constitution to conform to FFC? DOMA is just such an example.

Also, after many AM's, does it not say "Congress shall have power to enforce this by appropiate legislation", or some such words. I did not look to quote.

If they enforce it, they may also slip in provisions that, until ruled UNconstitutional, are legal.

 

[Luissa]

Even though John Marshall didn't see it as living document, when he became Chief Justice I think he made it into a living document if that makes sense. I think the framers created a document through interpretation could with stand time, and I think they wanted it that way. These men were not stupid and knew that the country would change.
A good example of it being a living document would be seperate but equal.

 

[lawbuff]

Even though John Marshall didn't see it as living document, when he became Chief Justice I think he made it into a living document if that makes sense. I think the framers created a document through interpretation could with stand time, and I think they wanted it that way. These men were not stupid and knew that the country would change.
A good example of it being a living document would be seperate but equal.

Also CJ Marshall, in Barron v. Baltimore, 1833, ruled the Bill of Rights did NOT apply to the states, yet today, overturning Barron, most of it does.

 

[Big Black Dog]

I don't think anybody in Washington these days cares about what the Constitution has to say. They certainly don't conduct business that way.

 

[lawbuff]

I don't think anybody in Washington these days cares about what the Constitution has to say. They certainly don't conduct business that way.

You got that right. I just read on the news where they want to raise the debt ceiling another 1.X trillion, to 14 something. Is this what a Democracy is? This can never be paid down, the annual interest payment alone is mind boggling. This will last into the 22nd century, and the kids growing up now have no idea what has been done to them by idiots.

 

[rightwinger]

Why bother with a Supreme Court then?

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

 

[Darkwind]

The living constitution theory believes that the constitution changes due to the politics of the times and interpretations are treated as legally powerful as the actual text which is why most proponents of the living constitution quote case law alone and never the actual words in the document. It allows the constitution to be distorted by the opinions of the justices on the bench thus changing it from what the creators of the actual law intended.

The constitution clearly states that the only way it can be altered is by the amendment process which can be done three ways. Two of them are by the legislative branch of the federal government and the third is by a conventions of the states. These are the only constitutional ways you can alter constitution's meaing so when people believe that the courts can alter it by their 'interpretation' they are assuming that the courts have powers that the constitution does not give them.

This makes living constitution theory unconstitutional since the meaning of the document can't be altered by the opinion of the courts. It can only be altered by the amendment process and that power is only granted to the legislative branch. They are the ones that create the law while the courts judge cases by what has been created by the legislative branch.

I personally think Jefferson would not agree with.


I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Thomas Jefferson

Okay, I can see and agree with that.

But the process and mechanism for doing just that has been in place since we were that 'boy in the short pants.'

The only real requirement for change is for an argument to be persuasive enough to get a majority of the elected representatives and a majority of the states to agree.

After all, if it is necessary that we have this change as a society, then it should be apparent to all of society, no? Or at least a significant number of them that change can be effected.

 

[jillian]

I don't think anybody in Washington these days cares about what the Constitution has to say. They certainly don't conduct business that way.

You got that right. I just read on the news where they want to raise the debt ceiling another 1.X trillion, to 14 something. Is this what a Democracy is? This can never be paid down, the annual interest payment alone is mind boggling. This will last into the 22nd century, and the kids growing up now have no idea what has been done to them by idiots.

what do you think the constitution have to do with the debt ceiling?

 

[RetiredGySgt]

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?

 

[jillian]

Really? Do you think before segregation was outlawed, it should have been put to a vote?

Or does the intent of the document require that rights are uniformly honored?


Do you think, even today, that such a proposal would pass?

 

[Darkwind]

Really? Do you think before segregation was outlawed, it should have been put to a vote?

Or does the intent of the document require that rights are uniformly honored?


Do you think that, even today, that such a proposal would pass?

Your meaning is unclear. What is it you are trying to say?

 

[jillian]

Really? Do you think before segregation was outlawed, it should have been put to a vote?

Or does the intent of the document require that rights are uniformly honored?


Do you think that, even today, that such a proposal would pass?

Your meaning is unclear. What is it you are trying to say?

Apologies. The Court decided in Brown v Bd of Ed, that separate but equal was unconstitutional. Prior to that decision, made during the 1950's, Plessy v Ferguson had been the law since, I think, 1890, and held that blacks and whites could have separate facilities (basically sustaining the jim crow laws). Had the Court not made that adaptation, blacks and whites would still be segregated, at least in certain areas of the country.

Do you think for a second, that had the Court not ruled as it did in Brown, that the voters would have voted against segregation?

 

[jillian]

Really? Do you think before segregation was outlawed, it should have been put to a vote?

Or does the intent of the document require that rights are uniformly honored?


Do you think that, even today, that such a proposal would pass?

Your meaning is unclear. What is it you are trying to say?

Apologies. The Court decided in Brown v Bd of Ed, that separate but equal was unconstitutional. Prior to that decision, during the 1950's, Plessy v Ferguson was the law and held that blacks and whites could have separate facilities (basically sustaining the jim crow laws). Had the Court not made that adaptation, blacks and whites would still be segregated, at least in certain areas of the country.

Do you think for a second, that had the Court not ruled as it did in Brown, that the voters of EVERY state would have voted against segregation?

 

[Luissa]

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.

 

[RetiredGySgt]

Really? Do you think before segregation was outlawed, it should have been put to a vote?

Or does the intent of the document require that rights are uniformly honored?


Do you think that, even today, that such a proposal would pass?

Your meaning is unclear. What is it you are trying to say?

Apologies. The Court decided in Brown v Bd of Ed, that separate but equal was unconstitutional. Prior to that decision, made during the 1950's, Plessy v Ferguson had been the law since, I think, 1890, and held that blacks and whites could have separate facilities (basically sustaining the jim crow laws). Had the Court not made that adaptation, blacks and whites would still be segregated, at least in certain areas of the country.

Do you think for a second, that had the Court not ruled as it did in Brown, that the voters would have voted against segregation?

Ever hear of the Civil Rights act? Seems Congress voted for it, by the way MOST of the Republicans ( 80 percent) to only some of the Democrats ( 62 percent) . Which of course brings up that idiotic claim that racist democrats in the South moved from the their party to one that more fully supported what supposedly made them move in the first place.

 

[RetiredGySgt]

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.

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.

 

[Darkwind]

Really? Do you think before segregation was outlawed, it should have been put to a vote?

Or does the intent of the document require that rights are uniformly honored?


Do you think that, even today, that such a proposal would pass?

Your meaning is unclear. What is it you are trying to say?

Apologies. The Court decided in Brown v Bd of Ed, that separate but equal was unconstitutional. Prior to that decision, made during the 1950's, Plessy v Ferguson had been the law since, I think, 1890, and held that blacks and whites could have separate facilities (basically sustaining the jim crow laws). Had the Court not made that adaptation, blacks and whites would still be segregated, at least in certain areas of the country.

Do you think for a second, that had the Court not ruled as it did in Brown, that the voters would have voted against segregation?

Of course they would have. The south did not and still does not have the amount of influence you think it does. In addition, I think that the courts have also ruled that forced segregation violated the Constitution. The ruling you are quoting is just an enforcement of the 13th and 15th Amendments to the Constitution. Both amendments were votes by the people to address the wrongs done to the African-American population in regards to their god given rights.

By your reasoning, it should have been the courts that freed the blacks because there wasn't enough votes to achieve the desired outcome.

But we know that history proves that wrong and that if there is a required adjustment to our society and the Constitution, the argument for changing that document is sufficient.