Were parts of the US Constitution originally intended to have an evolving application?

Futurist

Ad Honoris
May 2014
22,461
SoCal
Were parts of the US Constitution originally intended to have an evolving application? For instance, the Cruel and Unusual Punishments Clause in the 8th Amendment. Was there an intent to only have it apply to punishments that were "cruel and unusual" in 1791 or was there also a meta-intent to eventually have it apply to punishments that were not "cruel and unusual" in 1791 but became "cruel and unusual" later on? "Unusual" means "contrary to long usage" by the definition of 1791 and thus it is very clear how a punishment can be "unusual" (as in, contrary to long usage) right now but not back in 1791. I know that older originalists such as Raoul Berger advocated limiting this clause to punishments that were "cruel and unusual" in 1791 but I also know that some of the newer originalists (such as John Stinneford) advocate for an evolving application to this clause (while nevertheless keeping this clause's original meaning fixed). My question is this, though--which of these two positions was actually embraced by contemporary supporters of this clause? As in, the fixed application position or the evolving application position?

Another part of the US Constitution where this issue can be raised is the Privileges or Immunities Clause of the 14th Amendment. Obviously there were certain things that were viewed as being Privileges or Immunities back in 1868. However, the text of this Clause doesn't actually say what these Privileges or Immunities are. In turn, this raises the question of whether the draftsmen of the 14th Amendment originally intended to fix the identity of these Privileges or Immunities to what they were in 1868 or whether they were OK with having these Privileges or Immunities change over time--as in, with it being possible that something that was considered a Privilege or Immunity back in 1868 might no longer be considered such in the future or with something that wasn't considered a Privilege or Immunity back in 1868 being considered such in the future. Also, another related question is this--just how much discretion did the draftsmen of the 14th Amendment intend for future generations to have in regards to applying this clause? As in, would they have approved of the US Congress and/or the US Supreme Court inserting whatever Privileges or Immunities that they would have wanted into the Privileges or Immunities Clause--and for that matter, of the US Congress and/or the US Supreme Court taking whatever Privileges or Immunities that they would have wanted out of this Clause?

Anyway, what are your own thoughts on all of this?
 

Chlodio

Forum Staff
Aug 2016
4,630
Dispargum
Also in the 8th Amendment - no excessive bail or fines. Excessive is a flexible term.
9th Amendment - other rights exist besides those mentioned in the Constitution, but no one says what those rights are, leaving the future free to interpret the 9th Amendment in all manner of ways.
Reasonable, as in no unreasonable searches and seizures. Reasonable is a flexible term, varying from one situation to the next.
There's no limit to the number of Supreme Court justices - only that there be more than one (possibly). "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior..." Does the plural judges in this sentence mean that there must be more than one judge on the Supreme Court, or does it mean that there can be as few as one Supreme Court justice and the other judges are on the inferior courts?
Due process of law can change over time.


Here's an example of the opposite, something that should have been more flexible due to the effects of inflation: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ..." Twenty dollars was a lot of money back then. There were probably many suits where the amount in question was less than $20 so there was no right to a jury trial. Today I can't imagine a suit for less than $20.
 
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Futurist

Ad Honoris
May 2014
22,461
SoCal
Also in the 8th Amendment - no excessive bail or fines. Excessive is a flexible term.
9th Amendment - other rights exist besides those mentioned in the Constitution, but no one says what those rights are, leaving the future free to interpret the 9th Amendment in all manner of ways.
Reasonable, as in no unreasonable searches and seizures. Reasonable is a flexible term, varying from one situation to the next.
There's no limit to the number of Supreme Court justices - only that there be more than one (possibly). "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior..." Does the plural judges in this sentence mean that there must be more than one judge on the Supreme Court, or does it mean that there can be as few as one Supreme Court justice and the other judges are on the inferior courts?
Due process of law can change over time.
AFAIK, due process was initially largely a procedural term; the use of due process to invalidate legislation in the antebellum era was rather limited:

The Origins of Substantive Due Process by Ilan Wurman :: SSRN

As for the number of SCOTUS Justices, Yes, it does look like there needs to be at least two of them--though more likely three or a higher odd number if one wants to avoid SCOTUS tie votes.

As for the 9th Amendment, an interesting question would be just how much discretion did contemporary supporters of this Amendment intend to give future generations in regards to interpreting this Amendment? For instance, could one read abortion, same-sex marriage, adult incest, polygamy, et cetera as all being included within the range of unenumerated 9th Amendment rights? Would contemporary supporters of the 9th Amendment have been OK with future generations doing this?

Also, interestingly enough, in regards to the 14th Amendment's Privileges or Immunities Clause, some contemporaries of this Clause believed that it would incorporate the Bill of Rights against the states. However, the text of this Clause did not make it explicit that the rights in the first Eight Amendments are included within the Privileges or Immunities of this Clause. In turn, this raises the question of whether they would have actually been OK with future generations deciding not to apply the Bill of Rights against the states.

Here's an example of the opposite, something that should have been more flexible due to the effects of inflation: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ..." Twenty dollars was a lot of money back then. There were probably many suits where the amount in question was less than $20 so there was no right to a jury trial. Today I can't imagine a suit for less than $20.
This actually does raise an interesting question of whether "twenty dollars" here should be read as twenty dollars as per the 1791 value of twenty dollars or per the 2019 value of twenty dollars.
 

Futurist

Ad Honoris
May 2014
22,461
SoCal
The framers would be stunned it was still around. They probably thought the next evolution would be another constitution.
It's extremely difficult to get the necessary support for a new constitution in the US due to everything being open to revision in such a scenario, though.
 

MG1962a

Ad Honorem
Mar 2019
2,011
Kansas
It's extremely difficult to get the necessary support for a new constitution in the US due to everything being open to revision in such a scenario, though.
There was a reason the US has always seen itself as the "Great Experiment"
 
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Chlodio

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Aug 2016
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It's extremely difficult to get the necessary support for a new constitution in the US due to everything being open to revision in such a scenario, though.
Yes, but the founders had done it twice in less than ten years. They may have thought that a third time was not far off.
 
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Chlodio

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Aug 2016
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AFAIK, due process was initially largely a procedural term; the use of due process to invalidate legislation in the antebellum era was rather limited:
I was actually thinking of this from the 5th Amendment: "...nor shall any person ... be deprived of life, liberty, or property, without due process of law." So a person can be deprived of life, liberty, or property so long as due process is followed, but what is due process? Unless the process is defined, it is subject to change.
 
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Futurist

Ad Honoris
May 2014
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I was actually thinking of this from the 5th Amendment: "...nor shall any person ... be deprived of life, liberty, or property, without due process of law." So a person can be deprived of life, liberty, or property so long as due process is followed, but what is due process? Unless the process is defined, it is subject to change.
By that logic, we can say that even terms such as "natural-born citizen" can have their meaning change since their meaning isn't actually defined in the text, though. For that matter, we could also read the age requirements in the US Constitution using something other than a base-10 numbering system because the US Constitution doesn't specify what base numbering system we should use in reading the age requirements in it.
 

Futurist

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May 2014
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SoCal
Yes, but the founders had done it twice in less than ten years. They may have thought that a third time was not far off.
That might be a fair assessment of this situation. That said, though, the next several decades might have set them up for disappointment since only one new US constitutional amendment was passed between 1796 and 1864--and that's a whopping 68-year-time period! In fact, this time period would have very likely been even longer had the Southern US states not shot themselves in the foot in 1860 by seceding; that was literally one of the dumbest things that they ever did from the perspective of what they believed their own interests to be.