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View Poll Results: Is the US Constitution a "Living Document" or a "Dead Document"?
It is a living and evolving document. 10 40.00%
It is a dead document. 7 28.00%
Other. 8 32.00%
Voters: 25. You may not vote on this poll

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Old December 11th, 2012, 04:38 PM   #11

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Originally Posted by Belloc View Post
Neither in my view. You obviously can't interpret the constitution today strictly by 18th century standards today, but you can use those standards to better understand what was meant at the time. You then take that understanding of what was meant at the time and apply it to present circumstances. So the principles behind the constitution are "dead", but how we apply those principles are "living" by nature. Best I can explain this.
Whether one interprets the U.S. Constitution strictly (dead) or broadly (living) both forms of constitutional interpretation would look at the founding fathers' intent. The difference as I understand it, is if you believe in strict construction the only issue in any constitutional controversy is what did the founding fathers think and what did the words of the constitution mean to those 18th century founding fathers. So the principles would not be "living" as you put it, but "dead" because it would be the principles of the founding fathers.

Broad Construction of the Constitution will look at the founding fathers thoughts, but they also look at precedent and give the words of the Constitution their broadest meaning. For, instance in Roe v. Wade, the court found in the Constitution a right to privacy from the "penumbra" of rights under the Bill of Rights. An Originalist would never find a right to privacy in the Constitution as it is not explicitly mentioned.

Just to clarify one issue, precedent is also cited by strict constructionist/ Originalist as well obviously, but the founding fathers intent is their primary focus. Of course, just as broad constructionalist are often derided as judicial activist, the same charge has been made against the strict constructionalist as well.

Last edited by Aulus Plautius; December 11th, 2012 at 05:22 PM.
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Old December 11th, 2012, 05:31 PM   #12

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The terms 'dead and 'living' are poorly chosen terms that prejudice the mind and don't well represent the concept behind each.
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Old December 11th, 2012, 05:35 PM   #13

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Originally Posted by Aulus Plautius View Post
Whether one interprets the U.S. Constitution strictly (dead) or broadly (living) both forms of constitutional interpretation would look at the founding fathers' intent. The difference as I understand it, is if you believe in strict construction the only issue in any constitutional controversy is what did the founding fathers think and what did the words of the constitution mean to those 18th century founding fathers. So the principles would not be "living" as you put it, but "dead" because it would be the principles of the founding fathers.

Broad Construction of the Constitution will look at the founding fathers thoughts, but they also look at precedent and give the words of the Constitution their broadest meaning. For, instance in Roe v. Wade, the court found in the Constitution a right to privacy from the "penumbra" of rights under the Bill of Rights. An Originalist would never find a right to privacy in the Constitution as it is not explicitly mentioned.

Just to clarify one issue, precedent is also cited by strict constructionist/ Originalist as well obviously, but the founding fathers intent is their primary focus. Of course, just as broad constructionalist are often derided as judicial activist, the same charge has been made against the strict constructionalist as well.
I said the application of princples was "living", not the principles themselves. So I guess another way of putting it is strict interpretation based on the original principles, but broad application of such.
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Old December 11th, 2012, 05:59 PM   #14

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Originally Posted by Aulus Plautius View Post
Whether one interprets the U.S. Constitution strictly (dead) or broadly (living) both forms of constitutional interpretation would look at the founding fathers' intent. The difference as I understand it, is if you believe in strict construction the only issue in any constitutional controversy is what did the founding fathers think and what did the words of the constitution mean to those 18th century founding fathers. So the principles would not be "living" as you put it, but "dead" because it would be the principles of the founding fathers.

Broad Construction of the Constitution will look at the founding fathers thoughts, but they also look at precedent and give the words of the Constitution their broadest meaning. For, instance in Roe v. Wade, the court found in the Constitution a right to privacy from the "penumbra" of rights under the Bill of Rights. An Originalist would never find a right to privacy in the Constitution as it is not explicitly mentioned.

Just to clarify one issue, precedent is also cited by strict constructionist/ Originalist as well obviously, but the founding fathers intent is their primary focus. Of course, just as broad constructionalist are often derided as judicial activist, the same charge has been made against the strict constructionalist as well.
On the basis of the principles of statutory construction, the provisions of the U.S. Constitution provide the functions of the three main departments and their respective powers and limitations, and thus, I can't see any reason why it should be dead because the manner the executive, the legislative and the judiciary functions today are still in keeping with the mandate of the laws which the Founding Fathers crafted.

Regarding the Bill of Rights as its amendment, the same is incorporated thereat to be part of that fundamental law, and is still the backbone of the exercise of the civil liberties of all the people who reside in within the jurisdiction of the Federal Government of the U.S. While it is true that the interpretation of rights had varied from the moment it was made into law as before slavery was an institution, and later racism was tenable till its abolished, yet, the concept of recognition of human rights is universal in character, though its implementation is subjective. Thus, the relative intrinsic interpretation of the law may vary, but, the objectivity of the same is a constant thing, which makes the Constitution a living document.
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Old December 11th, 2012, 06:03 PM   #15

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The terms 'dead and 'living' are poorly chosen terms that prejudice the mind and don't well represent the concept behind each.
Why is that so? If I may ask
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Old December 11th, 2012, 07:53 PM   #16

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The Constitution is a living document. It was interpreted differently in the past and will be interpreted differently in the future. It was amended in the past and can be amended in the future.
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Old December 11th, 2012, 08:06 PM   #17
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The Constitution is a living document. It was interpreted differently in the past and will be interpreted differently in the future. It was amended in the past and can be amended in the future.
Then what, exactly, is stopping Scalia from interpreting the constitution to mean it is a 'dead' constitution?

I think, dagul, that a rebuttal like the one above is why the terms are so nonsensical. Eventually, you arrive at perfectly acceptable conclusion that a 'living' interpretation makes way for a 'dead' one or that, as some constitutional scholars have argued, a truly 'dead' interpretation is one for a 'living' view.
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Old December 11th, 2012, 08:29 PM   #18

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Then what, exactly, is stopping Scalia from interpreting the constitution to mean it is a 'dead' constitution?
The fact that the use and interpretation of the Constitution throughout history does not support his view.

It is demonstrably true that the Constitution has been amended and reinterpreted over the centuries. If Scalia's belief was correct, this simply would not be the case. Yet the facts remain, and they do not support him.
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Old December 11th, 2012, 08:38 PM   #19
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The fact that the use and interpretation of the Constitution throughout history does not support his view.

It is demonstrably true that the Constitution has been amended and reinterpreted over the centuries. If Scalia's belief was correct, this simply would not be the case. Yet the facts remain, and they do not support him.
First, that's really not a 'fact' as much as it is your own opinion on the matter. It's a pet peeve of mine, really, that opinions get thrown around like facts so often these days. "FACT, I HAVE OPINION." Great fact.

Second, if the Constitution has been interpreted then reinterpreted according to whomever's whims there's no reason to think that the camp that Scalia is a part of should be refused its time in the sun. If the Constitution was writting to be 'living' then there's no reason to think an evolving view of it being 'dead' should be ignored. Implicit in a view that the Constitution is 'living' there should be an acceptance that, at times, the view that it is 'dead' should also occur.

Which is sort of why I hate the dead v. alive dichotomy. They aren't opposites and most legal professionals (if not scholars) recognize this. Most people, I think, would if they could batter their way through the political nonsense that surrounds the words.
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Old December 11th, 2012, 09:04 PM   #20

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I felt that my first response to this thread skirted too close to contemporary politics. I'll try to avoid that in this one.

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Originally Posted by Aulus Plautius View Post
An Originalist would never find a right to privacy in the Constitution as it is not explicitly mentioned.
Agreed, and this despite the clear statement in the 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Of course, this was famously circumvented by Judge Bork when he described the 9th Amendment as an inkblot.

Quote:
Originally Posted by Aulus Plautius View Post
Just to clarify one issue, precedent is also cited by strict constructionist/ Originalist as well obviously, but the founding fathers intent is their primary focus.
Yet there is a certain incoherence in the position, at least when described by Scalia. Two statements made by Justice Scalia at a recent appearance:

Quote:
“The text is what governs,” said Scalia, explaining that it would be wrong to bring in the historical circumstances at the time of the Constitution’s signing or to attempt to interpret the intent of those who wrote the document.

“I don’t care what their intent was. We are a government of laws, not of men,” he explained.
Quote:
“Unless you give [the laws] the meaning of those who enacted them, you’re destroying democracy.”
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