Friday, February 17, 2006

A Living Document

"An honest man can feel no pleasure in the exercise of power over his fellow citizens." ~ Thomas Jefferson

Yesterday, I discussed Justice Antonin Scalia's comments regarding the Liberal idea that The U.S. Constitution is a "living document". He characterized anyone who believes that as an "idiot". While I would stop short at calling everyone who believes in the "living" Constitution an idiot, I do agree that it most assuredly is not. Living, I mean.

Let's examine this issue today.

Let's just suppose, for the sake of argument, that everyone in the country comes to an agreement that the Constitution is indeed a living document. Ok? It's a fantasy. Stay with me here.

Certainly, one of the first things that might happen in this scenario, is that the President or the Congress or both (if they are the same party) will change the Constitution giving the Supreme Court full authority to change the document at the whim of the powers that be.

At this point, The SCOTUS can make any law they want. For example, They can decide to repeal the amendment limiting the term of President. Or they can overturn Roe vs Wade. They could conceivably rule that all Conservatives have to wear propeller beanies to distinguish them from Liberals, or vice versa.

What would stop them?

They can say, "Well, the framers of the constitution were mostly Christians, but now that the United States is no longer a Christian nation, we will decree that anyone practicing Christianity can be put to death". Or, they can ban the death penalty altogether. Or, they could make a law making the Lutheran Church the state church and make it illegal to worship in any other kind of church.

What about National security? They can decide that wiretapping al-Qaida is illegal regardless of the circumstances, and release all the current al-Qaida prisoners into the general population. Or, They can round up all Middle Eastern looking people everywhere within the borders of the United States and put them all into internment camps.

They can outlaw any dissension from either Conservatives or Liberals. They could put Cindy Sheehan in jail. (hey, that's not a bad idea!) Or, they could put Rush Limbaugh in jail.

Why not? After all, it is a living document. Many of the accepted rules of civil behavior are no longer accepted. So let's just eliminate them. Nevermind that some people still believe in the principles this country was founded on. And while we're at it, let's just lower the age of consent to 8. After all, our kids are maturing earlier these days.

Make rape legal. The MTV generation doesn't think anything's wrong with that, as long as the guy buys the girl dinner first. (That is a fact. Look it up! It was in the results of a poll.)

Repeal abortion, or make it mandatory for all women who already have 2 children.

The Communist Chinese do that. It works for them!

Here's an idea that I like: Make a law that requires that everyone in the country has to marry someone from another race. Eventually, after a couple of generations, everyone in the country would be equally racially mixed.

No more racism. Right?

Then, after all these changes and/or any others you can think of, we elect another President from the other party. He proceeds to use his authority, given to him by the Justices that he appointed, to fire all justices and any others who don't see things his way. And then, he reverses all the changes made by the previous administration.

And so on and on and on.

Wait. This sounds like a dictatorship. Do you suppose a dictatorship was what the founders had in mind?

Of course, this is an extreme scenario. Naturally, we as Americans know better than that. It can't happen here.

Can it?

20 comments:

rich bachelor said...

What do you suggest the judiciary do with the issues not covered by the Constitution, but are nonetheless issues facing us now?
And do you understand that they're still going to interpret it, regardless of whether or not they choose to call it 'interpreting' it?

Erudite Redneck said...

Mark expounds on another topic he knows little about!

(And if this is "mean," delete it. But DO you know about the law? I mean, anyone can have an opinion about anything. But you always set yourself up as an authority. And you're not. ... Unless this has all been a ruse and 4 Rows Back actually is some kind of twisted pop culture study. .. THAT'S IT! You're actually one of those pesky egg-headed perfessors you pretend to hold is such low esteem! Great idea! Carry on.)

:-)

Mark said...

I hereby present myself to be educated, ER. I admit I know very little about this idea of a Living document. If this theory is flawed, by all means, enlighten us.

Seriously. What do I not understand?

Trixie said...

The framers of the Constitution recognized that there would be continuing reasons to change the document. There is a procedure in place for that -- it is called the amendment process. This process does not belong to the judiciary or the executive branches, but to the people. Review an eighth-grade civics book to understand how this works, or simply read Article 5 of the Constitution itself to see how it is done. Amendments must be ratified by three-fourths of the states.

Mark said...

Amendments are meant to add to the Constitution, not to change it, but am I wrong?

Son of Lilith said...

Amendments are meant to add to the Constitution, not to change it, but am I wrong?

Partially.

Amendments are meant to modify the Constitution. They may give more clarity to an article already in the document, make a change to the phrasing of something, or just add to it all together.

For example, the fifteenth (?) amendment gave blacks the right to vote, which was not given to them in the Constitution. This is not an addition to the original document but an addendum to it; a "by the way" statement if you will.

rich bachelor said...

Brandon has zeroed in on a specific aspect of what I was asking. No doubt the amendment freeing the slaves would have been decried as "legislating from the bench" by those who opposed it.
So what is it that you're asking the Supremes not to do here? The wording of the Constitution cries out for interpretation
a) so as to be flexible, and
b) its authors knew that times change.
Anyone who says they are only reading the Constitution as the Founders intended and nothing more is lying, to put it shortly.

Dan Trabue said...

And what of the 18th amendment - Prohibition? That was an addition. But then, the 18th amendment was repealed by the 21st amendment, which would qualify as a direct and opposite change, wouldn't it?

According to wikipedia:

Unlike most constitutions, amendments to the U.S. constitution are appended to the existing body of the text, rather than being revisions of or insertions into the main articles. There is no provision for expunging from the text obsolete or rescinded provisions.

So changes are made by amendments appended to the constitution. Which says to me that the constitution can, does and has changed.

Gayle said...

"Wait. This sounds like a dictatorship. Do you suppose a dictatorship was what the founders had in mind?" I don't think so!

It's a slippery-slope issue, Mark. "The fifteenth amendment" is an excellent example. The problem that you are trying to point out is - I think - that it has been taken to extremes, and I couldn't agree with you more! For whatever that's worth. :)

Erudite Redneck said...

The amendment process also can add something that a later amendment can take away: Prohibition.

Ah, and herein is the rub: Mark, I think, want us to believe that the courts are adding to the Constitution. They are not. They are -- and have been since 1803 -- explaining it in light of changing realities, and THAT is what it means to say it is a Living Document.

Lone Ranger said...

Liberals are really great at inserting language into the Constitution that isn't there. Just change freedom or speech into freedom of expression and suddenly it isn't about speech, it's about anything you want it to be, from dancing naked down the streets of San Francisco to producing computer-generated child porn. They interpret freedom of religion to mean freedom from religion, they read the right to keep and bear arms as the right to keep and bear arms only if you're in a militia. Their imagination and treachery are limitless. I believe it was Abraham Lincoln who said a law that can be interpreted any way you want to read it is no law at all.

Dan Trabue said...

Conservatives, too, can be really good about twisting language to make it say what you want. Just call it pre-emptive attack instead of invasion and it's all okay.

Name-calling and stereotyping whole groups of people is not especially helpful, kemo sabe.

Erudite Redneck said...

Yep Lincoln is a hero. Not. He just fricking suspended the laws HE didn't like.

Interesting that the current power-mongering pretend-conservative president admires Lincoln. Lincoln was the most liberal president ever -- not FDR.

Lincoln was a menace to the Constitution, as it was understsood at the time.

Just. Like. Bush.

Poison Pero said...

Question for Liberals:

Lets make a jump into the future and make a few assumptions (just for fun).

Lets say a Republican won the 2008 Presidential Election......Then lets say Ruthie and Stevens collapse, and are replaced by 2 solid Conservatives. Which would give the SCOTUS 6 Conservatives.

Do you want them treating the Constitution as a "living document?"

What if they rule this way:

1. Defining marriage as male/female ONLY!!!!!

2. Banning abortion in all cases except rape, incest, and to save a mother from physical harm or death.

3. Changing the definition of citizenship to exclude those born in the U.S. to parents in the U.S. illegally.

Would you still say it was a "living document?

I hardly think you would......Because I'm quite sure you only want it "living" your way.

Trixie said...

Let me remind all of you again that the courts have absolutely NO place in making amendments to the Constitution! The amendment process belongs in Congress, with ratification by three-fourths of the states. The judicial and executive branches have zero say in adding amendments, folks.

All three branches have specific duties assigned to them. There is a network of federal courts -- district courts, courts of appeal, courts of special jurisdiction and the Supreme Court.

The Supreme Court of the United States hears appeals from the decisions of the courts of appeals or state supreme courts (on constitutional matters), as well as having original jurisdiction over a very small number of cases.

Here's how the system of checks and balances works on the judicial branch (federal): The executive branch nominates a justice; the Senate confirms. Normally, appointments are for life; however, a judge or justice can be impeached, just like a president or other office-holder.

The Constitution was ratified in 1788; one of the great things about the Constitution is that it has survived for 218 years with only 27 amendments ratified. That's pretty amazing if you consider that there were 78 amendments proposed just through the course of the states' ratification of the document!

If you look at the nature of the amendments, by and large they added specific language to the Constitution extending the rights of the citizens of the union. (That 18th and 21st amendments really are rather odd flukes, regulating behavior rather than addressing civil rights.)

It's important to remember that Constitutional amendments are not the same as legislation. The amendments are dang serious. If you doubt that, consider that the Equal Rights Amendment was never ratified giving women equal protection under the law.

Trixie said...

I have to admit that I have no idea what Gayle means about the 15th Amendment being a "slippery slope." Can you speak to that, please, and explain what you mean? How can allowing former slaves the same rights as others be a "slippery slope"?

Jim said...

Ladies and Gentlemen:

Due to a fluke of cache I have missed this debate.

But let me congratulate one and all for an excellent and civil debate.

Mark said...

Trixie. I am not exactly sure what Gayle means by the 15th being a slippery slope. But It says:


1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

2. The Congress shall have power to enforce this article by appropriate legislation.

By "previous condition of servitude" maybe she is referring to the possiblility that some may use that as a reason to give the vote to convicted felons. Also, Perhaps she is referring to the allowing congress to enforce this amendment.

I don't know.

Trixie said...

First, again, Congress does not enforce anything. Congress is the legislative branch.

Second, "servitude" means slavery, not imprisonment. Those who are in prison have been ajudicated and convicted of their crimes. Appropriate penalties, including imprisonment, have been assigned to those crimes. It isn't even in the same ballpark as slavery.

If someone has been wrongly convicted of a felony, they can be pardoned and their civil rights, including the right to vote, can be restored.

However, this has nothing to do with Constitutional amendments or Congress.

I hope she will come back and explain this "slippery slope" notion. I'm very curious about what her fears are.

The WordSmith from Nantucket said...

Mark, I think, want us to believe that the courts are adding to the Constitution. They are not. They are -- and have been since 1803 -- explaining it in light of changing realities, and THAT is what it means to say it is a Living Document.

Amending the Constitution is one thing. But tell me how it is not legislating from the bench, when you have a decision like Roe v. Wade?

I'm not a strong proponent of anti-abortion legislation. But I think most legal scholars will even admit that Roe v. Wade is not Constitutionally sound. How is abortion an extension of a privacy right that isn't even explicitly mentioned in the Constitution? Where is the right to privacy clause?

I'm not completely bothered with the notion of a "living, breathing document" (as it pertains to the amendment process to adapt it to the changing times- not to interpret it any which way we see fit, in an act of generational whim and fancy). But I think it is disengenous to interpret something like the 1st Amendment as equating to "separation of church and state" as the ACLU knows it, and claim that this is what the Founding Fathers believed.