We need a new Constitution, yes or no?

[Derideo_Te]

You and I are on the same page. What is timeless remains so. However there are those who are trying to impose a "strict constructionist" interpretation on We the People because their hold on power is slipping away.

What do you mean by this? This is what I took as a defense of 'changing the terms of the contract'. What about a 'strict constructionist' interpretation imposes anything on anyone?

If you read the Constitution as originally written by the FF, which is exactly how the "strict constructionist" insist that it must be interpreted, then only white males over the age of 21 are allowed to vote.

The Constitution has subsequently been amended to address that issue but "strict constructionist" want to overturn those amendments. Here is the legal definition of what they are advocating.

Legal Dictionary | Law.com

strict construction

(narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

 

[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.

Nobody has EVER had the "right" to own slaves. Just because it was "legal" didn't make it right. You're confusing customs and various civil ordinances to God-given, natural rights. The initial Constitution deals with a man's natural-born rights under a broad code of human ethics. When a government says that I don't have a right to assemble or speak doesn't mean that I don't actually have those rights as man. So my initial argument stands.

Then by your own argument the BoR negated the "legality" of owning slaves. However slavery continued for another "four score and ten years".

 

[C_Clayton_Jones]

It's long overdue for a serious update. The Founders would have thought so as well. It was written on paper not carved in stone.

Hence the reason they gave us a process to amend it, but these days it's just easier for politicians to pass what ever laws they want, Constitutional or not, and make sure the president appoints judges who will go along with it and change the law by judicial fiat.

This is not correct.

Acts of Congress are Constitutional until such time as the Supreme Court rules otherwise (see, e.g., US v. Morrison (2000)). The First Amendment guarantees citizens the right to petition the government for a redress of grievances in the Federal courts when they perceive an act of government is in violation of their civil liberties.

When state or Federal courts review the constitutionality of a law, they do in the context of existing, established case law, and make a determination predicated on that case law, where their decisions are justified by the case law.

Consequently there is no such thing as 'judicial fiat,' as a judge's capricious ruling outside of establish jurisprudence will be invalidated when reviewed by an appellate court.

The incorrect perception of 'judicial fiat' manifests when the people err and enact measures which are clearly un-Constitutional, by referenda or through their elected representatives. This occurs because the people and their elected representatives are either ignorant of Constitutional case law or in contempt of it, and seek to enact measures known to be un-Constitutional for partisan reasons. An example of this would be the 'personhood' legislation enacted and struck down in some states because these measures violate a woman's right to privacy (Planned Parenthood v. Casey (1992)). When a judge invalidates a measure repugnant to the Constitution, he does so as authorized by the Constitution and its case law, not by 'fiat.'

And we see further confirmation of the myth of 'judicial fiat' as Federal judges appointed by both democratic and republican presidents follow accepted and settled 14th Amendment jurisprudence when they invalidate state measures seeking to deny same-sex couples access to marriage law. Indeed, all of the justices on the Casey court who ruled to uphold Roe and reaffirm a woman's right to privacy were republican appointees.

Last, the body of Constitutional case law established over the last 200 years, as well as the Anglo-American judicial tradition that predates the Constitution dating back centuries before the advent of the Foundation Era, affords the courts more than ample legal resources to address and resolve the conflicts and controversies of the day, where there is little, if any, reason to 'amend' the Constitution, and clearly no reason to 'replace' it.

 

[dblack]

You and I are on the same page. What is timeless remains so. However there are those who are trying to impose a "strict constructionist" interpretation on We the People because their hold on power is slipping away.

What do you mean by this? This is what I took as a defense of 'changing the terms of the contract'. What about a 'strict constructionist' interpretation imposes anything on anyone?

If you read the Constitution as originally written by the FF, which is exactly how the "strict constructionist" insist that it must be interpreted, then only white males over the age of 21 are allowed to vote.

The Constitution has subsequently been amended to address that issue but "strict constructionist" want to overturn those amendments. Here is the legal definition of what they are advocating.

Legal Dictionary | Law.com

strict construction

(narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

I've never taken the strict contructionalist view as a rejection of legitimate amendments.

In any case, if all you're suggesting is that we should use that amendment process to update the Constitution, I heartily agree. It's the attempts to change the meaning outside that process that I object to.

 

[Derideo_Te]

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.

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.

 

[Harry Dresden]

The "Living Constitution" and how public schools teach that "Loose Construction" is an ideologically equal alternative to "Strict Construction." Worse yet, now they teach that's "Loose Construction" is the preferred ideology, effectively nullifying the entire purpose of the Constitution, which is to be an immutable, unmovable and indestructible shackle on Government. The moment that shackled is "loosened" the Constitution becomes irrelevant, and the Constitution is then used to shackle the People instead.

Where ever did we get this idea that the First Amendment should be construed to shackle churches, instead of Congress, since the First Amendment only names Congress as the restricted body...?

No link provided!

Your personal opinion carries no weight except with those who are equally biased against education and government.

The Constitution is taught in schools as the Supreme Law of the Land, nothing more and nothing less.

so where is your link?.......because unless you provide one....that is your opinion too...just sayin.....

 

[dblack]

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.

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.

 

[Harry Dresden]

An absolute yes from me.

Here's a draft of the new Constitution I came up with. What do you all think?

Article I

Section I

Barack Obama is hereby declared President of the United States.

Section II

All powers not expressly addressed in this Constitution are reserved for President Obama.

This one will be a lot easier to learn than the old clunker taught in history classes today.

so not the President.....but President Obama....why dont you just say what you mean....you want the guy to be President for life....

 

[Harry Dresden]

What we need is less ignorance of, and contempt for, the Constitution and its case law by the partisan right.

shut the **** up Jones....why you even post is a mystery....

 

[SmedlyButler]

It's long overdue for a serious update. The Founders would have thought so as well. It was written on paper not carved in stone.

Especially agree with "The Founders would have thought so as well." They weren't under the delusion they were writing a perfect document that would be eternally relevant in every detail. Hence the amendment process. However, can you imagine a worthy group of delegates to a modern day Constitutional Convention? One that could do a re-write that would be accepted by a broad enough majority of Americans to make it past first draft stage? I can't.

 

[Mad Scientist]

I must be tired. I thought the poll said "Do we NEED a Constitution?"

Oops!

 

[C_Clayton_Jones]

Yes. In my view, the Constitution is a living document and needs substantial updating.

The Constitution is neither 'living' nor 'static,' there is no 'initial' Constitution, and the notions of 'originalism,' 'strict constructionism,' and 'constitutional literalism' are false dogma.

The Constitution enshrines fundamental, immutable principles of freedom and individual liberty.

As Justice Kennedy explains in Lawrence:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

This was the essence of the genius of the Framers, their humility to not presume to know what comprehensively constitutes liberty, but to ensure that the principles safeguarding liberty are forever protected and afforded to citizens to ward off government encroachment upon their civil liberties.

It is ultimately the sole responsibility of each citizen to defend his civil liberties, not government, where the Constitution provides each citizen the means for that defense, and the courts act as a neutral venue where the citizen can mount his defense.

 

[JakeStarkey]

SCOTUS is empowered by the Constitution and precedent and case law to act as the only premier interpreter of the law.

We are a republic not a democracy.

 

[Idadunno]

Those who say "we need to follow the one we got" should realize a Constitution that isn't enforced perhaps means it needs better enforcement provisions.

Changing the Constitution does not mean laws will be enforced--plus, who do you think will make those changes? The same people who do not follow the one we have. If you want
to live under a totalitarian regime, then go for it.
Our Constitution is the best of any country. It provides everything we need--including how to get those in charge to enforce the laws. If you want to make a change, clean the House, and then clean the Senate. The Senate cannot pass any law that is not approved by the House. The House is reelected every two years. This is the starting point---clean House.

Learn about your state rules for write-ins to bypass those who consistently run unopposed.
The federal government starts in our home states.

 

[Kosh]

SCOTUS is empowered by the Constitution and precedent and case law to act as the only premier interpreter of the law.

We are a republic not a democracy.

Well obviously you cut and paste that from somewhere as you are far left we all know you do not believe it.

 

[ShaklesOfBigGov]

Those who say "we need to follow the one we got" should realize a Constitution that isn't enforced perhaps means it needs better enforcement provisions.

In other words, no, we don't need a new Constitution.

We just need an amendment that lists penalties for disobeying the provisions in the one we've got.

A few such penalties might include something like:

"If Congress or any state or local legislature passes a law that infringes the right of the people to keep and bear arms, each member of the legislature who voted to pass the law, shall be sentenced to a minimum of 6 months in prison; and the law shall immediately become null and void."

"If Congress passes a law asserting a power not explicitly listed in the U.S. Constitution and its amendments, each member of Congress who voted to pass it, shall lose his membership in Congress and be barred from holding any further public office; and the law shall immediately become null and void."

The details can be discussed further, I just rattled those two off the top of my head.

Keep in mind that most provisions in the Constitution, don't command the people to do anything. Instead, they command the government to do things (or to not do certain things).

But the idea definitely has some encouraging possibilities.

Presently, I believe the Constitution contains a provision saying that members of Congress cannot be prosecuted for things they do as part of their official duties.

Clearly this needs to change, and the amendment I suggested, would change it.

This Amendment should also give Juries the express power of deciding whether or not a law is or isn't constitutional, before even deciding the defendant's guilt. Any law that is decided to be unconstitutional in at least 4.5% of the cases (1 - two standard deviations) after 3 months of operation is to become null and void, but no action is to be taken against the Legislature; however, if more than 31.8% of the cases are determined to be unconstitutional after 3 months, the legislators who voted for the bill are to be removed from office and jailed for 12 months, all pensions removed and salaries must be paid back.

If the Supreme Court were to interpret the law rather than add to it, and our government believed in a true separation of the three branches of government as outlined in the constitution, there would be no need to have this discussion. However since the judicial branch is more interested in appeasing ideological views and takes it upon themselves to act as the legislative branch, likewise the President dictates authority unto himself exercising powers that's not been given to him in adding to or choosing to ignore parts of the legislative laws, there will be no respect for the Constitution nor those framers who wrote it. The constitution is more viewed as a mere "suggestion" by those who would much rather satisfy their special interest groups or ideological base.

Incidentally, the constitution grants interpretative power to the justices, where the "judges, both of the supreme and inferior courts, shall hold their offices during good behaviour." The question then becomes has that condition ever come into question, whereby the judge is not fulfilling their obligated position according to the guidelines that are determined and set under the Constitution?

 

[SmedlyButler]

get an idea of what the Founders thought about the Constitution's possible longevity. As PMH suggested reading a little history can take a lot of the guesswork out of the process. For instance Chernow in his biography of Washington ("Washington - a Life") wrote;

In correspondence, Washington admitted to imperfections in the new charter but trusted to the amendment process to refine it. The Constitutional Convention was no conclave of sages in Roman togas, handing down eternal truths engraved in marble, and he wondered how long the document would last....

For Washington, the beauty of the document was that it charted a path for its own evolution. It's very brevity and generality -- it contained fewer than eight thousand words -- meant it would be a constantly changing document, susceptible to shifting interpretations. It would be left to Washington and other founders to convert this succinct, deliberately vague statement into a working reality.

You'll find Chernow's work on most of the "best Washington biographys" lists. If you dig into history just a little bit you will come to the conclusion that most of the Founders wouldn't be "strict constructionists" today.

 

[Spoonman]

Our first Constitution was pretty liberal for its time and a new Constitution would be even more liberal. The nation's history is of slow liberalism, too fast for some and too slow for others, but always in the liberal direction.

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.

 

[Derideo_Te]

The "Living Constitution" and how public schools teach that "Loose Construction" is an ideologically equal alternative to "Strict Construction." Worse yet, now they teach that's "Loose Construction" is the preferred ideology, effectively nullifying the entire purpose of the Constitution, which is to be an immutable, unmovable and indestructible shackle on Government. The moment that shackled is "loosened" the Constitution becomes irrelevant, and the Constitution is then used to shackle the People instead.

Where ever did we get this idea that the First Amendment should be construed to shackle churches, instead of Congress, since the First Amendment only names Congress as the restricted body...?

No link provided!

Your personal opinion carries no weight except with those who are equally biased against education and government.

The Constitution is taught in schools as the Supreme Law of the Land, nothing more and nothing less.

so where is your link?.......because unless you provide one....that is your opinion too...just sayin.....

I haven't expressed an opinion! I am stating a FACT which every kid in school is taught. Bizarre that you would believe that the Articles of the Constitution are "opinion".

Article VI | Constitution | US Law | LII / Legal Information Institute

ARTICLE VI

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

 

[JakeStarkey]

SCOTUS is empowered by the Constitution and precedent and case law to act as the only premier interpreter of the law.

We are a republic not a democracy.

Well obviously you cut and paste that from somewhere as you are far left we all know you do not believe it.

I do believe it, and unlike you, I can write originally, and not have to cut and paste like you.

Marbury and precedent and case law since then makes SCOTUS the decision maker on federal law.

That you don't like is immaterial.