Tuesday, June 22, 2010

A Mind is a Terrible Thing to Pour Waste Into...

6 comments:

Anonymous said...

Do you mean junk like"the constitution is a living document"?

Gerald Britt said...

Sorry, any document which must be amended in order to remain relevant, is indeed a 'living document'. The Constitution, as great as it is, is incapable of foreseeing every change in culture and society. So it is changed in order to clarify and expand freedoms.

Strict constitutionalists, tend to only want it 'changed' so that it restricts freedoms to some notion of the framers original intent.

But again, that wasn't what the post was about was it?

Anonymous said...

I know that you are content to allow the Constitution to progress based on whims, but there is no constitutional basis to change our governing document based on the whims of anyone. The judicial system was created to interpret not to move along a social agenda.

You must admit that there are some laws not subject to social change - such as murder, but again I stand corrected for there is and has been legal abortion for a number of years. It is only a matter of time before assisted suicide and geriatric termination become legal. Who knows, then perhaps termination based on an individual's contribution to society become will also become acceptable.

Jut as a challenge for you, where is the expansive latitude you speak of? Its certainly no written into the Constitution.

As far as restricting freedom, there is a substantial danger in the concentration of power in the federal government- much greater than your perception of danger posed by the strict constitutionalists. The pendulum moves left not because of the will of the majority, but because of the underlying desire of an aggressive governing minority.

Quite right, it was off topic, but nevertheless stimulating.

Gerald Britt said...

Would you deny that the 13th amendment (making slavery illegal); the 15th amendment (giving minorities the right to vote); the 17th amendment (allowing direct election of senators); the 19th amendment (giving women the right to vote); the 26th amendment (giving 18 year olds the right to vote)are expansions and clarifications of freedoms? Even among the handful of amendments that may be interpreted as 'restrictive' (like the 18th amendment - prohibition, later repealed by the 21st amendment) can also be described, again, as clarifications of the extent of government powers.

These amendments are not necessary, if the original document of the framers of the constitution were indeed omniscient and had untrammled vision into the future, thus providing us with something that was never in need of adaptation to changes in society.

I'm sorry, but the constant drumbeat of Americans 'frightened' of government and posing as strict constitutionalist (a position in which they are rarely, if ever consistent) is not seriously defensible.

Anonymous said...

Gerald, you are correct insofar as the amendments did correct failures in the original Constitution, but these amendments do not qualify as a living document. The amendments were a correction of the shortcomings of the original framing document, voted and approved by the citizenry, and incorporated into the constitution in writing, not by judicial decree.

Gerald Britt said...

I get what you're saying (although I don't think of the amendments of correcting shortcomings - but your description is probably right). I determining rights, the judiciary (I assume your talking about the Supreme Court), has nothing to work from but the Constitution. As in Plessy v. Ferguson and Brown v. Board, they have, of necessity, the right to 'correct' misinterpretations of previous courts.

This act of making the Constitution reflect its times and the cultural and political interests of their era, is what makes the Constitution a living document in my mind.

This by no means suggests that I believe in every ruling or interpretation of the Constitution. It means, however, that we live with them and work to make sure we correct them when possible.

What if the Court renders a ruling based on an interpretation of the Constitution that you consider right and I consider wrong? A strict constitutional interpretation doesn't make the document any less 'living', it has still been interpreted and, in the case cited above is subject to a 're-interpretation'.

So that's my rationale.

I understand your points. I just don't agree...