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Thread: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    constructionists TRY to adhere to original intent

    activists DON'T

    even the most obscurantist can't obfuscate THAT

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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by The Prof View Post
    constructionists TRY to adhere to original intent

    activists DON'T

    even the most obscurantist can't obfuscate THAT
    True. But activists can be liberal or conservative. No one should think that only one side tries to twist the meaning to their liking.

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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by jamesrage View Post
    I think anyone who thinks like this should not be allowed to serve as a judge,lawyer let alone a professor at some university to teach law.


    FOXNews.com - Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Even his critics describe him as "brilliant," but President Obama's newly minted judicial nominee -- law professor Goodwin Liu -- will not have an easy time getting to the 9th Circuit bench.

    At age 39, Liu has compiled an impressive resume: Rhodes Scholar, Supreme Court clerk, top grades at both Stanford University and Yale Law School and now law professor University of California, Berkeley.

    Liu has also aligned himself with progressive legal groups, including the American Constitution Society, where he is chairman of the board of directors. That's prompting opponents to argue that Liu is "too far outside the mainstream" to take a seat on a court just one step below the Supreme Court of the United States.

    "He believes the Constitution is something judges can manipulate to have it say what they think culture or evolving standards of decency requires of it in a given day," said the Senate Judiciary Committee's top Republican Jeff Sessions, R-Ala.
    I don't see a problem with this. After all, we are talking about the 9th Circus, here. Whatever mischief they come up with will always be struck down by the Supremes. LOL.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by Groucho View Post
    True. But activists can be liberal or conservative. No one should think that only one side tries to twist the meaning to their liking.
    they can be

    but they usually aren't

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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by liblady View Post
    thanks. doesn't every challenged law require interpretation of the constitution?
    If the law being challenged has something to do with constitutional interpretation, then yes, to a degree. Many (most?) cases don't involve an interpretation of the constitution, but rather of the meaning of a statute. Many of the same general principles apply here, so I'll lump that in for simplicity's sake.

    Because the Constitution is broadly drafted, it doesn't even come close to covering every imaginable situation that the courts will face. Even with the help of contemporaneous records and things like the Judiciary Act of 1789, we can only know so much about what the framers were thinking when they wrote the law. However, that doesn't mean that the court has to resort to completely subjective interpretation. It helps if you think about it as a gauntlet.

    In many cases, the Constitution is unequivocal. If the constitution says you get a trial by jury, you get a trial by jury. Those cases get kicked out here while the others continue on.

    In the vast majority of those cases where the text doesn't explicitly answer the question, this historical knowledge and context I mentioned is enough to resolve the dispute - that's why a huge portion of the difficult cases arising under the Constitution were resolved relatively early, leaving the courts with precedent to guide them.

    Now, when you're interpreting a statute passed by Congress, you have to deal with many of the same issues. Most laws that are at issue are fairly old, and the questions of what Congress meant when the laws were enacted are no less challenging. In these cases, the court has a whole set of canons of construction that it uses to determine how to apply the law. These are relatively straight forward and common sense rules, many of which are listed here: Statutory interpretation - Wikipedia, the free encyclopedia

    A few examples:

    Ejusdem generis (Of the same kinds, class, or nature) - When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

    In pari materia (Upon the same matter or subject) - When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

    Rule of Lenity - In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant.
    These canons can be used to reach a result in pretty much every possible case. While it's certainly possible for two honest judges to come to a different interpretation of a statute/the Constitution using these methods, that's not "judicial activism" or the idea of the Constitution as a living document. The living document theory is that rather than concerning itself with what the framers/legislators meant when they said XYZ, the court should just determine what it thinks is the best policy and go with that. From my perspective, that's an unwarranted and improper intrusion upon the lawmaking power.

    and doesn't every amendment at least clarify, if not reinterpret, the constitution?
    Each amendment clarifies or reinterprets the part of the Constitution that it refers to. Nobody is disputing that. The point is that while the founders obviously intended that the people be able to redefine the Constitution via the amendment process, there is very little evidence that they intended that the courts be able to redefine the Constitution via the judicial process.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by RightinNYC View Post
    If the law being challenged has something to do with constitutional interpretation, then yes, to a degree. Many (most?) cases don't involve an interpretation of the constitution, but rather of the meaning of a statute. Many of the same general principles apply here, so I'll lump that in for simplicity's sake.

    Because the Constitution is broadly drafted, it doesn't even come close to covering every imaginable situation that the courts will face. Even with the help of contemporaneous records and things like the Judiciary Act of 1789, we can only know so much about what the framers were thinking when they wrote the law. However, that doesn't mean that the court has to resort to completely subjective interpretation. It helps if you think about it as a gauntlet.

    In many cases, the Constitution is unequivocal. If the constitution says you get a trial by jury, you get a trial by jury. Those cases get kicked out here while the others continue on.

    In the vast majority of those cases where the text doesn't explicitly answer the question, this historical knowledge and context I mentioned is enough to resolve the dispute - that's why a huge portion of the difficult cases arising under the Constitution were resolved relatively early, leaving the courts with precedent to guide them.

    Now, when you're interpreting a statute passed by Congress, you have to deal with many of the same issues. Most laws that are at issue are fairly old, and the questions of what Congress meant when the laws were enacted are no less challenging. In these cases, the court has a whole set of canons of construction that it uses to determine how to apply the law. These are relatively straight forward and common sense rules, many of which are listed here: Statutory interpretation - Wikipedia, the free encyclopedia

    A few examples:



    These canons can be used to reach a result in pretty much every possible case. While it's certainly possible for two honest judges to come to a different interpretation of a statute/the Constitution using these methods, that's not "judicial activism" or the idea of the Constitution as a living document. The living document theory is that rather than concerning itself with what the framers/legislators meant when they said XYZ, the court should just determine what it thinks is the best policy and go with that. From my perspective, that's an unwarranted and improper intrusion upon the lawmaking power.



    Each amendment clarifies or reinterprets the part of the Constitution that it refers to. Nobody is disputing that. The point is that while the founders obviously intended that the people be able to redefine the Constitution via the amendment process, there is very little evidence that they intended that the courts be able to redefine the Constitution via the judicial process.
    again, thanks. this is what i was missing, i think:

    The living document theory is that rather than concerning itself with what the framers/legislators meant when they said XYZ, the court should just determine what it thinks is the best policy and go with that. From my perspective, that's an unwarranted and improper intrusion upon the lawmaking power.

    Originally Posted by johnny_rebson:

    These are the same liberals who forgot how Iraq attacked us on 9/11.


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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Justice Antonin Scalia of the United States Supreme Court spoke in Chicago on October 12, 2002. He discussed his philosophy regarding interpretation of the United States Constitution. In this article, I will attempt to summarize the points made by this great jurist.

    Justice Scalia stated that he is an "originalist" in interpreting constitutional issues. He described his position as being one that seeks to divine the intent of the drafters of our Constitution. He pointed out that this is different from someone described as a "strict constructionist," who gives strict meaning and limited interpretation to the words of the Constitution. He pointed out that if you put most of the law professors in the country in a room, and fired a cannon filled with grapeshot, no "originalist" would be hit. He said that when he lectures to law students, he asks them to go back to their professors and ask them "if you are not an originalist, then what philosophy do you adhere to in teaching the interpretation of the Constitution?" He argues that one can either be an originalist or have no real philosophy at all in interpreting the Constitution.

    Justice Scalia pointed out that it is fashionable to teach students today about a "living Constitution." By this, what is meant is that the Constitution changes to fit society’s needs as the culture changes. This is different from the concept that he espouses, which holds that as new issues develop that were not present or known to the Framers of the Constitution, these matters are viewed in terms of how the Framers intended to deal with issues such as these. Although the argument is put forth that modern times cannot have been anticipated by men living 200 years ago, Justice Scalia’s position is that it is the framework of the government that they established that provides all of the necessary flexibility. For instance, he said that he disagrees with the decision that found that a right to abortion exists in the Constitution. He pointed out that the drafters of the Constitution clearly knew what abortion was, and that it was prohibited in their time. The Constitution is simply silent as to this issue. There is no constitutional right to abortion in the same way that there is no constitutional right to prohibit abortion. The Constitution simply allows the people to choose to pass laws either way, through the democratic process, or to amend the Constitution.

    He mentioned that it is common today to find individuals who are deeply passionate about a given subject who claim that any view contrary to their own must be "unconstitutional." It is this very habit that has arisen in modern times that has given birth to the concept of the "living Constitution." He believes that this concept is dangerous to the system of government that the Founding Fathers intended to establish, but he is pessimistic as to whether this concept can be overcome.

    According to Justice Scalia, the concept of the "living Constitution" has given rise to interpretations of the Constitution that can change with the prevailing winds of the times. He suggests, for instance, that what we all understand to be protected free speech today could turn out to be unprotected tomorrow, if the culture changes to a new prevailing viewpoint. He said that this is not what the Framers intended. As another example, he pointed to the current debate about whether the death penalty is unconstitutional because it is cruel and unusual. He mentioned that the Constitution specifically mentions that there is a right to a jury trial in "capital" cases. There is no question that the drafters of the Constitution did not consider the death penalty cruel and unusual. In fact, the death penalty was imposed in all felony cases at that time, including horse thievery and similar nonviolent offenses. Therefore, he argues, there is no basis to claim that it is unconstitutional. Instead, the Framers provided for democracy to work in such cases. If one believes passionately in a cause, then one must persuade the majority regarding one’s viewpoint and pass a law through the legislative process to support that view. This is the democratic process envisioned by the Framers to deal with the changes they knew society would face in the future.


    DCBA Brief, December 2002 Issue - Justice Scalia’s Comments On Constitutional Interpretation

    All right....have at it Groucho.....Let's see your counter to Justice Sclia


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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by Groucho View Post
    True. But activists can be liberal or conservative. No one should think that only one side tries to twist the meaning to their liking.
    Hmmm....identify "conservative" judicial activism. Cite specific cases and their relevance to everyday American life. How much freedom was lost?

    Present a ratio of how much "conservative" activism is put in place compared to the socialist/liberal/progressive activism that has done so much damage to this nation.

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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by Groucho View Post
    Yes, I was referring to other threads. This same argument has been going on forever here, it seems. I get tired of it after a while, so forgive me if I don't want to bang my head against the wall again.
    Do you have a link? I looked through a couple of pages of your most recent posts and couldn't find anything. I'm genuinely curious to see these quotes that support the living Constitution approach.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by liblady View Post
    again, thanks. this is what i was missing, i think:
    Not a problem at all. I enjoy writing things like that out sometimes, it helps me rework through some things in my head (and helps for class).

    To be clear, I'm not saying that the living Constitution theory is obviously wrong or that you'd have to be dumb to support it. There are plenty of people (including many that are far, far smarter than I) who have offered cogent and well-thought out reasons for why they think it's the best way to read the Constitution. I just don't agree, for the reasons I've stated, and think it's a problematic road to go down.
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

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