We need a new Constitution, yes or no?

[JakeStarkey]

Shakles can shake his fist at SCOTUS all he wants: doesn't matter.

 

[Derideo_Te]

Exactly. That's what I'm talking about. There is specified means for changing the contract. The living document approach functions as a 'workaround', changing the meaning of the constitution without amending its contents.

My understanding of the "living document" concept is that what is changed must fit the definition of being constitutional.

The classic example here is DOMA. It was a law that was written as a means to "enshrine" the oppression of the majority. However when it was brought under the scrutiny of the 3rd branch of government it failed to meet the standard of being constitutional because it was not in compliance with the concept that all are equal under the law.

So the only way to effectively "enshrine" DOMA would have been for it have been proposed as a constitutional amendment and to have been ratified by 2/3rds of the states. That would probably have failed too.

Hmm... Ok. I was going with something more like:

In United States constitutional law, the Living Constitution, also known as loose constructionism, permits the Constitution as a static document to have an interpretation that shifts over time as the cultural context changes. The opposing view, originalism, holds that the original intent or meaning of the writers of the Constitution should guide its interpretation.

"Loose constructionism" is a fabrication of the John Birch society.

The John Birch Society

Broad Constructionism is the current means by which the Constitution is applied since they take into account both the intention of the law and the prevailing circumstances to embrace a realistic "living document".

 

[JakeStarkey]

JBS theory of strict construction would allow each state of have its own gun laws, for instance.

 

[dblack]

My understanding of the "living document" concept is that what is changed must fit the definition of being constitutional.

The classic example here is DOMA. It was a law that was written as a means to "enshrine" the oppression of the majority. However when it was brought under the scrutiny of the 3rd branch of government it failed to meet the standard of being constitutional because it was not in compliance with the concept that all are equal under the law.

So the only way to effectively "enshrine" DOMA would have been for it have been proposed as a constitutional amendment and to have been ratified by 2/3rds of the states. That would probably have failed too.

Hmm... Ok. I was going with something more like:

In United States constitutional law, the Living Constitution, also known as loose constructionism, permits the Constitution as a static document to have an interpretation that shifts over time as the cultural context changes. The opposing view, originalism, holds that the original intent or meaning of the writers of the Constitution should guide its interpretation.

"Loose constructionism" is a fabrication of the John Birch society.

The John Birch Society

Broad Constructionism is the current means by which the Constitution is applied since they take into account both the intention of the law and the prevailing circumstances to embrace a realistic "living document".

Well, what's your view then? Can you characterize it without using any of the disputed terms? It sounds (now) like you agree with me - that any attempts to altar the original meaning of the Constitution, and its ratified amendments, require going through the actual amendment process.

Do you support an interpretation that "shifts over time as the cultural context changes"?

 

[Derideo_Te]

I don't agree. I believe there is a right way to do things and a wrong way. In fact, there are lots of wrong ways.

When a baker creates the perfect cake there is no need to "liberally" change the recipe over time. The perfect cake will ALWAYS be the perfect cake.

In 4016 B.C. a person had the right to defend himself and his family from a violent criminal. The same will be true of a person living in 2036 A.D.

In 2036 B.C. a person had the right to express his beliefs verbally. The same will be true of a person living in 2021 A.D.

There's an old saying that's simple but true: "if it works ... don't fix it." Who here truly believes that they can improve upon the basic tenets of the Constitution of the USA?

In 4016 B.C. a person had the right to own slaves. That slave would consider his owner to be a violent criminal. Would that slave have the right to defend himself against his owner? Not according to the law of the land in 4016 B.C. In fact that slave would be considered as the violent criminal.

So what was true in 4016 B.C. is no longer true today. It didn't work in the 1860's and so it was "fixed" by a bloody civil war.

We have improved on the "basic tenets of the Constitution of the USA" during the intervening 200+ years. We have abolished slavery and amended voting rights for all citizens instead of only white males.

So the process that was built into the Constitution to "fix it" was there because the FF's were astute enough to know that society evolves and if the Constitution did not evolve to keep pace with society it would become irrelevant.

We live in a different age that is more enlightened than when the Constitution was originally written and so We the People should work together to ensure that the government of the people and by the people is actually FOR ALL of the people too.

the constitution as it was written was a pretty perfect document. most of what we really need to govern is pretty much spelled out in the original intent. I struggle with modern day interpretations of the constitution. because then it comes down to what their interpretations are. and that becomes a huge risk factor, especially in a climate like we have today where special interests control government. not the people. and who is to say how things will change going forward. no one ever foresaw a Nazi Germany, or a Stalinist Russia. depending who is interpreting really has a significant impact.

I would prefer the interpretations to be of those who wrote it. those who fought and risked their lives to end a tyranical government. those who had experienced first hand the need to keep government in the hands of the people not in the hands of those governing or their financial backers.

Agreed absolutely that the special interests are calling the shots and that goes for all 3 branches. We the People have to fight to protect our rights and that requires eternal vigilance. I don't foresee a tyrannical government in our future but if it happens it will be from within.

We are not perfect and we will only succeed if we unite our strengths to compensate for our weaknesses. Together this nation has accomplished great things but divided it is going nowhere. Time to put aside the petty differences of opinion and get on with growing a future for our kids and grandchildren in my opinion.

 

[Derideo_Te]

Hmm... Ok. I was going with something more like:

"Loose constructionism" is a fabrication of the John Birch society.

The John Birch Society

Broad Constructionism is the current means by which the Constitution is applied since they take into account both the intention of the law and the prevailing circumstances to embrace a realistic "living document".

Well, what's your view then? Can you characterize it without using any of the disputed terms? It sounds (now) like you agree with me - that any attempts to altar the original meaning of the Constitution, and its ratified amendments, require going through the actual amendment process.

Do you support an interpretation that "shifts over time as the cultural context changes"?

Yes, we are mostly on the same page here. If any of the proposals in this thread want to be taken seriously (juries nullifying laws, etc) then they need to go through the Amendment process.

Aside from that I am comfortable with the current process which assumes all laws passed by Congress and signed by the POTUS are Constitutional until challenged and found otherwise by the SCOTUS.

 

[C_Clayton_Jones]

Maybe I'm not fully understanding the concept, or how you're using it, but I thought the whole idea of a "living document" was that we could just adapt it to our current needs without amending it. It's usually presented as a more fluid alternative to updating it via the amendment process.

Perhaps you could try reading the Constitution first and finding out for yourself how that "adaption" process actually works. (Hint: Article V.)

Exactly. That's what I'm talking about. There is specified means for changing the contract. The living document approach functions as a 'workaround', changing the meaning of the constitution without amending its contents.

The Constitution is not a 'contract,' and the interpretive authority of the courts as authorized by the doctrine of judicial review, and as codified by the Constitution in Articles III and VI, clearly establishes that to interpret the Constitution is not to 'change' the Constitution, where the amendment process is utterly inappropriate to bring resolution to the conflicts and controversies of the day; existing Constitutional jurisprudence is more than adequate to address that need.

 

[JakeStarkey]

The Constitution certainly can be considered a contract: to state otherwise makes reason stare.

Extremists from left and right can make hay with "where the amendment process is utterly inappropriate to bring resolution to the conflicts and controversies of the day; existing Constitutional jurisprudence is more than adequate to address that need."

 

[dblack]

"Loose constructionism" is a fabrication of the John Birch society.

The John Birch Society

Broad Constructionism is the current means by which the Constitution is applied since they take into account both the intention of the law and the prevailing circumstances to embrace a realistic "living document".

Well, what's your view then? Can you characterize it without using any of the disputed terms? It sounds (now) like you agree with me - that any attempts to altar the original meaning of the Constitution, and its ratified amendments, require going through the actual amendment process.

Do you support an interpretation that "shifts over time as the cultural context changes"?

Yes, we are mostly on the same page here. If any of the proposals in this thread want to be taken seriously (juries nullifying laws, etc) then they need to go through the Amendment process.

Aside from that I am comfortable with the current process which assumes all laws passed by Congress and signed by the POTUS are Constitutional until challenged and found otherwise by the SCOTUS.

Well, that's sort of sidestepping the actual debate, isn't it? The whole point is that many of us think that the SCOTUS judges have erred, that they've indulged interpretations that have, in fact, shifted with time, and with the desires of the leaders who appointed them, and failed to honer the original meaning of the text. If and when that can be shown to be the case, do you agree that subsequent Court decisions should strive to correct such errors?

 

[JakeStarkey]

Well, what's your view then? Can you characterize it without using any of the disputed terms? It sounds (now) like you agree with me - that any attempts to altar the original meaning of the Constitution, and its ratified amendments, require going through the actual amendment process.

Do you support an interpretation that "shifts over time as the cultural context changes"?

Yes, we are mostly on the same page here. If any of the proposals in this thread want to be taken seriously (juries nullifying laws, etc) then they need to go through the Amendment process.

Aside from that I am comfortable with the current process which assumes all laws passed by Congress and signed by the POTUS are Constitutional until challenged and found otherwise by the SCOTUS.

Well, that's sort of sidestepping the actual debate, isn't it? The whole point is that many of us think that the SCOTUS judges have erred, that they've indulged interpretations that have, in fact, shifted with time, and with the desires of the leaders who appointed them, and failed to honer the original meaning of the text. If and when that can be shown to be the case, do you agree that subsequent Court decisions should strive to correct such errors?

That is what in fact the Court is supposed to do. We can only hope the Court will correct in the future decisions like Citizens United. Or Hobby Lobby.

 

[C_Clayton_Jones]

Shakles can shake his fist at SCOTUS all he wants: doesn't matter.

Where the 'Supreme Court is always wrong' crowd renders intelligent, meaningful discussion of the Constitution and its case law impossible.

Pity.

 

[Kosh]

Yes, we are mostly on the same page here. If any of the proposals in this thread want to be taken seriously (juries nullifying laws, etc) then they need to go through the Amendment process.

Aside from that I am comfortable with the current process which assumes all laws passed by Congress and signed by the POTUS are Constitutional until challenged and found otherwise by the SCOTUS.

Well, that's sort of sidestepping the actual debate, isn't it? The whole point is that many of us think that the SCOTUS judges have erred, that they've indulged interpretations that have, in fact, shifted with time, and with the desires of the leaders who appointed them, and failed to honer the original meaning of the text. If and when that can be shown to be the case, do you agree that subsequent Court decisions should strive to correct such errors?

That is what in fact the Court is supposed to do. We can only hope the Court will correct in the future decisions like Citizens United. Or Hobby Lobby.

And the far left talking points comes out and shows that the far left wants legislation from the bench and continues to show that they do not understand the Constitution.

 

[Kosh]

Shakles can shake his fist at SCOTUS all he wants: doesn't matter.

Where the 'Supreme Court is always wrong' crowd renders intelligent, meaningful discussion of the Constitution and its case law impossible.

Pity.

Ironic comments from the racist far left posters that do not understand the constitution.

 

[NYcarbineer]

Conservatives think that they could get a better deal for their minority opinions by somehow scrapping this Constitution and ratifying a new one?

That is a delusion to top all delusions.

Given the ratification process, and given that 2/3rds of the people are liberal or moderate, where do conservatives come up with these crazy ideas?

 

[Kosh]

Conservatives think that they could get a better deal for their minority opinions by somehow scrapping this Constitution and ratifying a new one?

That is a delusion to top all delusions.

Given the ratification process, and given that 2/3rds of the people are liberal or moderate, where do conservatives come up with these crazy ideas?

More far left propaganda based on far left talking points!

 

[Derideo_Te]

Well, what's your view then? Can you characterize it without using any of the disputed terms? It sounds (now) like you agree with me - that any attempts to altar the original meaning of the Constitution, and its ratified amendments, require going through the actual amendment process.

Do you support an interpretation that "shifts over time as the cultural context changes"?

Yes, we are mostly on the same page here. If any of the proposals in this thread want to be taken seriously (juries nullifying laws, etc) then they need to go through the Amendment process.

Aside from that I am comfortable with the current process which assumes all laws passed by Congress and signed by the POTUS are Constitutional until challenged and found otherwise by the SCOTUS.

Well, that's sort of sidestepping the actual debate, isn't it? The whole point is that many of us think that the SCOTUS judges have erred, that they've indulged interpretations that have, in fact, shifted with time, and with the desires of the leaders who appointed them, and failed to honer the original meaning of the text. If and when that can be shown to be the case, do you agree that subsequent Court decisions should strive to correct such errors?

Yes, I do! We may differ on which court decisions were errors but the process by which the court is reversed does not always go through the court itself. Congress rewrites legislation when it believes that the court has overstepped it's bounds and then subsequent rulings redress the balance.

The entire 3 branch check & balance structure of government tends to shift from side to side over time. But each time it swings a little too far in one direction it always swings back again. The make up of the SCOTUS is dependent upon who is in the WH and the Senate when appointments are made and We the People decide who occupies those elected positions.

The decisions made by the SCOTUS affect how we vote and that will in turn alter who will next be sitting on the bench albeit the time lapse between the events is longer than we may like.

 

[dblack]

Yes, we are mostly on the same page here. If any of the proposals in this thread want to be taken seriously (juries nullifying laws, etc) then they need to go through the Amendment process.

Aside from that I am comfortable with the current process which assumes all laws passed by Congress and signed by the POTUS are Constitutional until challenged and found otherwise by the SCOTUS.

Well, that's sort of sidestepping the actual debate, isn't it? The whole point is that many of us think that the SCOTUS judges have erred, that they've indulged interpretations that have, in fact, shifted with time, and with the desires of the leaders who appointed them, and failed to honer the original meaning of the text. If and when that can be shown to be the case, do you agree that subsequent Court decisions should strive to correct such errors?

Yes, I do! We may differ on which court decisions were errors but the process by which the court is reversed does not always go through the court itself. Congress rewrites legislation when it believes that the court has overstepped it's bounds and then subsequent rulings redress the balance.

The entire 3 branch check & balance structure of government tends to shift from side to side over time. But each time it swings a little too far in one direction it always swings back again. The make up of the SCOTUS is dependent upon who is in the WH and the Senate when appointments are made and We the People decide who occupies those elected positions.

The decisions made by the SCOTUS affect how we vote and that will in turn alter who will next be sitting on the bench albeit the time lapse between the events is longer than we may like.

Alright. I can work with that. But I can't accept the shifting interpretation approach that CCJones seems to be advocating. I also agree with you that extreme measures like jury nullification are untenable and, while they may be justified at some point, are tantamount to revolution - a last resort at best.

 

[dblack]

Conservatives think that they could get a better deal for their minority opinions by somehow scrapping this Constitution and ratifying a new one?

That is a delusion to top all delusions.

Given the ratification process, and given that 2/3rds of the people are liberal or moderate, where do conservatives come up with these crazy ideas?

I'd like to see a new Constitution, or at least a broad ranging Constitutional Convention because it would prompt real consideration of the issues.

 

[JFK_USA]

The constitution is fine as it is because we have the ability to change it with amendments. Though I hate when people say "The Founding Fathers wanted this or that." The Founding Fathers disagreed on many issues, they were not all in unison on the issues.

I like what George Washington said about the Founding Fathers:


"I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us."

We are going to disagree on issues but saying that the founding fathers would have been this or that is stupid and fruitless on both sides. We don't know and won't know.

 

[Derideo_Te]

Well, that's sort of sidestepping the actual debate, isn't it? The whole point is that many of us think that the SCOTUS judges have erred, that they've indulged interpretations that have, in fact, shifted with time, and with the desires of the leaders who appointed them, and failed to honer the original meaning of the text. If and when that can be shown to be the case, do you agree that subsequent Court decisions should strive to correct such errors?

Yes, I do! We may differ on which court decisions were errors but the process by which the court is reversed does not always go through the court itself. Congress rewrites legislation when it believes that the court has overstepped it's bounds and then subsequent rulings redress the balance.

The entire 3 branch check & balance structure of government tends to shift from side to side over time. But each time it swings a little too far in one direction it always swings back again. The make up of the SCOTUS is dependent upon who is in the WH and the Senate when appointments are made and We the People decide who occupies those elected positions.

The decisions made by the SCOTUS affect how we vote and that will in turn alter who will next be sitting on the bench albeit the time lapse between the events is longer than we may like.

Alright. I can work with that. But I can't accept the shifting interpretation approach that CCJones seems to be advocating. I also agree with you that extreme measures like jury nullification are untenable and, while they may be justified at some point, are tantamount to revolution - a last resort at best.

The approach that CCJ is advocating is the current system that you and I just agreed on. He is just explaining it from a legal perspective as opposed to my layman's approach.

We are not going to have a revolution or even a constitutional convention although I would prefer the latter over the former if push came to shove.

Yes, there is dissatisfaction today but there was dissatisfaction under the prior administration from the left. The system is imperfect and it is impossible to make everyone happy all of the time. The hyperbole and fractiousness is part of the process that keeps it going.