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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 12th, 2012, 11:50 AM   #41

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Just a note to add that although there is often recourse to the Framers, the Constitution was actually established by "The People," so interpretation should be done in light of the common meanings of words back then, instead of what Madison or some such thought the words meant.
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Old December 12th, 2012, 11:57 AM   #42
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Just a note to add that although there is often recourse to the Framers, the Constitution was actually established by "The People," so interpretation should be done in light of the common meanings of words back then, instead of what Madison or some such thought the words meant.
While I'm not the biggest fan of originalism, the idea that someone can consult 'the people' or find a 'common meaning' for certain words seems to miss the point of having laws in the first place. Judges have vastly more power than lexicographers do to define words for a reason. Also, it's historically absurd. No one who ended up in the Convention, except with an exception or two, thought that the meaning of the Constitution could be weaseled out by asking "the mob." Someone's thought process needs to be consulted. Not 'the Founders,' perhaps, but someone's.
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Old December 12th, 2012, 04:25 PM   #43

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Originally Posted by RoryOMore View Post
Just a note to add that although there is often recourse to the Framers, the Constitution was actually established by "The People," so interpretation should be done in light of the common meanings of words back then, instead of what Madison or some such thought the words meant.
The document is described as "a Constitution for the People" not a Constitution by the People. The United States at that time was purely a representative democracy, in which laws were written (and voted on) by elected representatives. Later of course the referendum and initiative were introduced, but only on the state level.

Still I would be interested in seeing you explain in more detail why you think it makes sense to try to find how "The People" defined and understood words, as opposed to their elected representatives who actually wrote and voted on the Constitution. To me it sounds at least somewhat problematic.
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Old December 12th, 2012, 05:23 PM   #44

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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.
I fully understood that it is not your own personal opinion
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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.
It can also be a possibility that the failure of taking of the notes was done inadvertently. Nonetheless, if the Constitution was to be interpreted rigidly as possibly intended by the Founding Fathers, maybe, there might be implementing rules over the provisions of it.
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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.
If there is that note taken by James Madison, then in the event that there is a necessity to interpret the provision of the Constitution as it was framed then such can be very useful because it shall enlighten the jurists and the scholars of the law regarding the manner and the purpose of the provisions of them why they were crafted that way.
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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.
I do not necessarily adhere with the lack of intention to have such be implemented as they intended it, because it must be noted that the moment it was created, it was not as modern as today where the recording of every proceeding is done in detail in contrast to the lack of sophistication of their time. It is so hard to conclude regarding their intention as to the absence of the notes, but, your opinion is also a possibility.
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Old December 12th, 2012, 05:24 PM   #45

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The document is described as "a Constitution for the People" not a Constitution by the People. The United States at that time was purely a representative democracy, in which laws were written (and voted on) by elected representatives. Later of course the referendum and initiative were introduced, but only on the state level.
It's described in a lot of ways, but it's indisputably "We the People" who established justice, etc. The Constitution was given effect by the people who ratified it, not the ones who wrote it, so it's the ratifiers whose understanding should count.

If I can make an analogy to regular contract law, trying to get inside the Framers' minds is every bit as silly as interpreting a contract by asking the lawyers who negotiated it what they thought about its provisions -- even with respect to interpretations that were never actually communicated to the clients.

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Still I would be interested in seeing you explain in more detail why you think it makes sense to try to find how "The People" defined and understood words, as opposed to their elected representatives who actually wrote and voted on the Constitution. To me it sounds at least somewhat problematic.
It's not clear if by "wrote and voted on" you're talking one or two groups of people. Do you mean the Framers and the ratifiers? As to substance, judges will still be required to decide what the language meant. They'd just have to consider a wider range of information before deciding.
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Old December 12th, 2012, 05:26 PM   #46

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Originally Posted by Recusant View Post
The document is described as "a Constitution for the People" not a Constitution by the People. The United States at that time was purely a representative democracy, in which laws were written (and voted on) by elected representatives. Later of course the referendum and initiative were introduced, but only on the state level.

Still I would be interested in seeing you explain in more detail why you think it makes sense to try to find how "The People" defined and understood words, as opposed to their elected representatives who actually wrote and voted on the Constitution. To me it sounds at least somewhat problematic.
I fully understand what you mean over this, because in democracy it is a fact that the learned have still the advantage over those who are not. It is one of its inherent weaknesses, though I am still in its favor than any other form of government.
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Old December 12th, 2012, 05:36 PM   #47
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The document is described as "a Constitution for the People" not a Constitution by the People. The United States at that time was purely a representative democracy, in which laws were written (and voted on) by elected representatives. Later of course the referendum and initiative were introduced, but only on the state level.

Still I would be interested in seeing you explain in more detail why you think it makes sense to try to find how "The People" defined and understood words, as opposed to their elected representatives who actually wrote and voted on the Constitution. To me it sounds at least somewhat problematic.
The United States "at that time" was a republic - which it remains. The farmer or mechanic in 1789 understood differences in governmental models (say monarchy vs republic) about as well as does Joe Six Pack in 2012.

Qualification for voting was an established consideration from English law. Not being so very revolutionary, America did the same. Representation being elected by other elected representatives, and an electoral college were seen to discourage mob rule - probably wisely.

The majority of "The People" were not yet literate, and the vast majority earned a subsistence living with minimal time for much other than work. Much of their understanding of public affairs was read to them in public houses.
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Old December 12th, 2012, 06:10 PM   #48

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Originally Posted by RoryOMore View Post
It's described in a lot of ways, but it's indisputably "We the People" who established justice, etc. The Constitution was given effect by the people who ratified it, not the ones who wrote it, so it's the ratifiers whose understanding should count.
I think it's valid to say that the source I drew that description from has standing in comparison to any others that might be cited.

As for the ratifiers, those were not "The People" either, but were in fact their representatives, at the various Constitutional conventions held in each state. "The People" didn't vote on the Constitution of the United States (except in Rhode Island). Now if you want to say that we should try to discern how the delegates to those conventions would have understood various words and concepts in the Constitution, I would still say it's a rather problematic proposition.

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Originally Posted by RoryOMore View Post
If I can make an analogy to regular contract law, trying to get inside the Framers' minds is every bit as silly as interpreting a contract by asking the lawyers who negotiated it what they thought about its provisions -- even with respect to interpretations that were never actually communicated to the clients.
I agree. In my opinion, it's even more silly to try to get into the heads of some amorphous group described as "The People."

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It's not clear if by "wrote and voted on" you're talking one or two groups of people. Do you mean the Framers and the ratifiers?
Sorry, I should have tried to be more clear. I mean the delegates to the Philadelphia Convention at which the Constitution was written and each proposal voted on by those delegates. Just to clarify: I do not agree with the "Originalist" position, but I find your proposed modification of that position no more reasonable.

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As to substance, judges will still be required to decide what the language meant. They'd just have to consider a wider range of information before deciding.
Legal precedent has already established the understanding of meaning for pretty much any part of the Constitution of the United States we care to examine. It's only when a particular judge or advocate wants to reverse a precedent that they might attempt to try to change that understanding by reinterpreting the language to conform to their agenda. Or in the case of Judge Bork, refusing to even acknowledge that the language exists, and has a clear meaning.
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Old December 12th, 2012, 07:12 PM   #49

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Originally Posted by pikeshot1600 View Post
The United States "at that time" was a republic - which it remains. The farmer or mechanic in 1789 understood differences in governmental models (say monarchy vs republic) about as well as does Joe Six Pack in 2012.

Qualification for voting was an established consideration from English law. Not being so very revolutionary, America did the same. Representation being elected by other elected representatives, and an electoral college were seen to discourage mob rule - probably wisely.

The majority of "The People" were not yet literate, and the vast majority earned a subsistence living with minimal time for much other than work. Much of their understanding of public affairs was read to them in public houses.
I think you underestimate the American public of the time. In fact they were very well aware of government and what was going on, and quite literate. Don't forget that Thomas Paine's "Common Sense" sold half a million copies in its first year of publication. This in a nation of only 3 million people.

But of course that doesn't mean that they would have understood or paid much attention to all the gory details of the Constitution, any more than they would today. I agree that it was wise to have elected representatives do that for them.
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Old December 12th, 2012, 07:30 PM   #50
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I think you underestimate the American public of the time. In fact they were very well aware of government and what was going on, and quite literate. Don't forget that Thomas Paine's "Common Sense" sold half a million copies in its first year of publication. This in a nation of only 3 million people.

But of course that doesn't mean that they would have understood or paid much attention to all the gory details of the Constitution, any more than they would today. I agree that it was wise to have elected representatives do that for them.
One thing to keep in mind is that the only reason the Constitutional Conventions of the various states ever even happened was because the dutifully, democratically elected state legislatures would never pass it.

It makes me wonder, at least, what sort of precedent that sets.
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