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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, 11:01 PM   #21

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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.
I think the problem here is we're confusing two different concepts. There's the concept of "strict constructionism" and there's the concept of "originalism". They are different. Strict constructionism means you take the literal meaning of the words as they are written. Originalism means you try to apply the original intent of the people who wrote the words. Originalism would be the opposite of the "living" constitution. Strict constructionism is a different, although related, topic.
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Old December 11th, 2012, 11:08 PM   #22

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Here's a good quote from Justice Scalia himself on the matter:

Quote:
I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.

Source: Justice Scalia Discusses Constitutional Interpretation
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Old December 12th, 2012, 12:07 AM   #23

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Living easy. It's been proven what 28 times now? Will have to read the thread tomorrow and see the opposing view
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Old December 12th, 2012, 12:15 AM   #24

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^Rongo, that is of course a valid argument that the text of the law such as the Constitution must be interpreted in keeping with the intention of the framers for which it was crafted. That is the reason why the stenographic notes or the minutes of the deliberation is important when it comes to the interpretation of the law. It is not however an act of interpreting it to the letter, but like what had been stated, it must be reasonable, and such is in keeping with the intention of those who created the law.
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Old December 12th, 2012, 02:54 AM   #25
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I don't know much but as much my consideration it is living document.
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Old December 12th, 2012, 03:52 AM   #26

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^Rongo, that is of course a valid argument that the text of the law such as the Constitution must be interpreted in keeping with the intention of the framers for which it was crafted.
Yes, it is a valid argument. Just to be clear though, that's not my own personal opinion, it's Justice Scalia's. I personally believe we need to try to understand what the founding fathers were trying to achieve, but to also apply it to our own times.

Quote:
That is the reason why the stenographic notes or the minutes of the deliberation is important when it comes to the interpretation of the law.
This is a very interesting point, and it's actually one of the reasons why I think "originalism" was not intended by the founding fathers. The official secretary of the constitutional convention, William Jackson, was an unemployed law student. He took very sparse notes. He basically just recorded the resolutions and the ayes and nays, and recorded very little of the discussion or debate.

Some of the convention members took notes themselves on their own initiative, but only one of them took really detailed notes. That was James Madison. His notes indeed were very complete. But it wasn't until years later that anyone even realized he had taken detailed notes, and it wasn't until decades later that Madison published them. And by then he had made revisions to them.

So I tend to think if the founding fathers had really intended for us to divine their intentions, they would have had a more formal and less haphazard process of note-taking.
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Old December 12th, 2012, 03:53 AM   #27

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It was certainly designed to be an adaptable document, more than an evolutionary one. I think it's hard to deny the "life" (it's a bad term) of the Necessary and Proper Clause, which states: "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Obviously things change over the years, and in writing a clause like this, the Founding Fathers understood that what the government needed to do would change.

However, I think the "life" of the Constitution did certainly have limits. From the 1960s to 1990s, the federal government used the Commerce Clause to establish the constitutionality of a number of laws (civil rights, gun rights, ect.). In this case, the Constitution took too much life. The Commerce Clause was strictly meant to give the federal government control over commerce, not gun use or civil rights. Even though civil rights and some level of gun control are necessary, the extension of the Commerce Clause to include these created a dangerous precedent, luckily one the Supreme Court eventually struck down.
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Old December 12th, 2012, 05:13 AM   #28

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Quote:
Originally Posted by Rongo View Post
Here's a good quote from Justice Scalia himself on the matter:
I see the subtle distinction between strict constructionalism and Originalism, but see the terms as more or less synonymous. If one makes a strict interpretation of the constitution you are by definition looking just at the plain meaning of the words and nothing that may be implied in those words. Originalism does the same, except that, if I understand it correctly, looks to the meaning of those words from its 18th century definitions and meanings.

One of the most important concepts of American jurisprudence is the concept of stare decisis. That court decisions should be based on the precedent of prior court opinions. I remember an interview with Justice Scalia where he stated that the difference between him and Justice Thomas was that Justice Thomas would overturn all prior decisions that did not comport to his Originalist philosophy, whereas he, Scalia, is doing it subtly because of stare decisis and a need to show respect to precedent.

That is why Originalist/Strict Constructionist are just considered another form of judicial activism as they would seek change no less profound than a broad constructionalist, if not more so.

But be that as it may, if you do take the Orginalist/Strict Constructionalist philosophy then you believe that the constitution is a dead document as the interpretation of its words remain and will always remain in the 18th century.
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Old December 12th, 2012, 05:24 AM   #29

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Originally Posted by Aulus Plautius View Post
...One of the most important concepts of American jurisprudence is the concept of stare decisis. That court decisions should be based on the precedent of prior court opinions. I remember an interview with Justice Scalia where he stated that the difference between him and Justice Thomas was that Justice Thomas would overturn all prior decisions that did not comport to his Originalist philosophy, whereas he, Scalia, is doing it subtly because of stare decisis and a need to show respect to precedent...
I agree about the importance of stare decisis, and disagree completely with Justice Thomas' philosophy, if that indeed is what it is. Stare decisis allows the Constitution to evolve, but at the same time creates a chain of precedents leading all the way back to the original document. It really gives us some of both worlds, and I think that's a good thing.

EDIT TO ADD: But I also believe there are rare circumstances where it is acceptable to break from stare decisis.
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Old December 12th, 2012, 05:37 AM   #30

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Originally Posted by Rongo View Post
I agree about the importance of stare decisis, and disagree completely with Justice Thomas' philosophy, if that indeed is what it is. Stare decisis allows the Constitution to evolve, but at the same time creates a chain of precedents leading all the way back to the original document. It really gives us some of both worlds, and I think that's a good thing.
I agree with you. Justice Scalia remarked at Princeton, if what I am reading is correct, that his philosophy would create greater certainty in constitutional interpretation as meanings of words would not change and thus there would be less overturning of precedent. The most ironic part about Originalist philosophy is that it may be based on the words used in the 18th century and, depending on who you ask or read, the intent of the drafters, but the founding fathers could not agree what it all meant. I mean if in the 18th and early 19th century they could not agree, how can we centuries later discern what they meant.

Constitutional interpretation has ebbed and flowed between strict and broad interpretation depending on the make-up of the court. But ultimately as you correctly point out it all goes back to the original document and that is a good thing.
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