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

  1. #41
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by Harry Guerrilla View Post
    I can't for the life of me understand how people interpret Constitution and Bill of Rights to mean, flexible guidelines.

    If you want to change something with in The Constitution there is a procedural process, it's called amending.
    Now they would of never added that if, the Rules of the Constitution were to never be amended or the rules were flexible guidelines.

    The argument that The Constitution was meant to be a living document is only in reference to the amending process.
    All other references that the clear cut rules, are some how guidelines, is dubious because of the specific amending process.

    You don't like whats in The Constitution, amend it.
    Otherwise, get off this banter about "living document."

    Your argument is totally invalid based on procedure and the construction of the document itself.

    I totally agree.Seems kind of pointless to have an amendment process if the constitution is a living document.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by RightinNYC View Post
    And as I tried to explain to you once already, the concept of judicial review is not the same thing as the concept of a living document. Marbury v. Madison had absolutely nothing to do with the idea of the Constitution as a living document. The crux of the decision was Marshall's insistence on adhering to what he believed was the original meaning of the Constitution. Had he been arguing for the Constitution as a living document, he would have been free to assert jurisdiction over the mandamus claim.
    The concept of a living Constitution is that the courts have the power to interpret the meaning of the Constitution. The courts derived that power not from the Constitution itself but from the Marbury v. Madison ruling. The Constitution became a living document the moment they did so, even though that was probably not the intention of the ruling.

  3. #43
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by CriticalThought View Post
    The concept of a living Constitution is that the courts have the power to interpret the meaning of the Constitution. The courts derived that power not from the Constitution itself but from the Marbury v. Madison ruling. The Constitution became a living document the moment they did so, even though that was probably not the intention of the ruling.
    Marbury v Madison was about the courts interpreting laws and making sure they fall with in constitutional boundaries.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by CaptainCourtesy View Post
    Interesting. We agree, everywhere except the last part of the last sentence. That's why it was broadly drafted... to cover changes in the conceptions of free speech, gun ownership, etc... This is certainly about reinterpretation and expansion because the Constitution was broad. If it was narrow, this would not apply.
    How do you figure? The very fact that he even deals with the question of narrow v. broad indicates that he though the text of the Constitution as drafted was fixed to a large degree. If the Constitution could simply be reinterpreted by the courts to fit the mores of the time, then why would it matter whether it was drafted narrowly or broadly? The only way that drafting matters is if the text has some intrinsic and inflexible meaning.

    And yet you changed the language. It was drafted broadly so it's meanings could be flexible in judicial interpretation, so it can applied to modern and future societies. You are talking about creating new laws. I am talking about using the Constitution to deal with new situations.
    And as Hamilton makes clear in various of the Federalist Papers, the Constitution is a limited one. It's not designed to cover new situations, it's designed to sketch out a framework in which new laws shall be made. The framers did not envision the Constitution being used as a justification for the vast majority of our laws, but rather as a backdrop in front of which the legislature would act.

    Quote Originally Posted by CriticalThought View Post
    The concept of a living Constitution is that the courts have the power to interpret the meaning of the Constitution.
    This is just incorrect. You're describing judicial review, which, as I've pointed out several times, is very different from the concept of a living Constitution.

    Judicial review is the idea that an independent judiciary has the authority to review the acts of the legislature and determine if they comply with the Constitution. This is a theory of governance born out of the concept of separation of powers.

    The idea of the living Constitution is that the meaning of the Constitution changes over time and that the Judiciary should take it upon itself to divine those social changes and adapt the meaning of the Constitution accordingly. This is a theory of constitutional interpretation.

    Again, they are entirely distinct concepts.
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  5. #45
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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 totally agree.Seems kind of pointless to have an amendment process if the constitution is a living document.
    Yep, the "living document" argument seems to be invented to avoid making sure you get your full fledged rights.

    Whats funny or sad, depending on which way you take it, is that these people believe the government should have flexibility when it comes to The Constitution but that you and I must follow the letter of the law with no flexibility.

    Basically, they break the law, sometimes it's ok.
    You break the law, there are no excuses.
    I was discovering that life just simply isn't fair and bask in the unsung glory of knowing that each obstacle overcome along the way only adds to the satisfaction in the end. Nothing great, after all, was ever accomplished by anyone sulking in his or her misery.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by RightinNYC View Post
    This is just incorrect. You're describing judicial review, which, as I've pointed out several times, is very different from the concept of a living Constitution.

    Judicial review is the idea that an independent judiciary has the authority to review the acts of the legislature and determine if they comply with the Constitution. This is a theory of governance born out of the concept of separation of powers.

    The idea of the living Constitution is that the meaning of the Constitution changes over time and that the Judiciary should take it upon itself to divine those social changes and adapt the meaning of the Constitution accordingly. This is a theory of constitutional interpretation.

    Again, they are entirely distinct concepts.
    Well then that is where we disagree. I cannot conceive of a way that judicial review does not lead to a living Constitution. The very fact that judges are born in a different time and raised under entirely different circumstances within an entirely different culture than the founding fathers means that they will inherently interpret things differently and will be biased to interpreting them in accordance to their own time. It is an inevitability and even the strictest Constitutionalists are subject to it. The only difference is that some judges do it intentionally and with full knowledge of doing so and others resist doing so but end up doing so anyways due to lack of awareness of their own cognitive bias.

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

    Quote Originally Posted by CriticalThought View Post
    Well then that is where we disagree. I cannot conceive of a way that judicial review does not lead to a living Constitution. The very fact that judges are born in a different time and raised under entirely different circumstances within an entirely different culture than the founding fathers means that they will inherently interpret things differently and will be biased to interpreting them in accordance to their own time. It is an inevitability and even the strictest Constitutionalists are subject to it. The only difference is that some judges do it intentionally and with full knowledge of doing so and others resist doing so but end up doing so anyways due to lack of awareness of their own cognitive bias.
    Can I make the argument that murder is sometimes ok because where I grew up it is justified in certain circumstances?

    Should I be able to get away with some Murders?
    I was discovering that life just simply isn't fair and bask in the unsung glory of knowing that each obstacle overcome along the way only adds to the satisfaction in the end. Nothing great, after all, was ever accomplished by anyone sulking in his or her misery.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by CriticalThought View Post
    Well then that is where we disagree. I cannot conceive of a way that judicial review does not lead to a living Constitution.
    And you're free to feel that way, but by no means is it an obvious result.

    The very fact that judges are born in a different time and raised under entirely different circumstances within an entirely different culture than the founding fathers means that they will inherently interpret things differently and will be biased to interpreting them in accordance to their own time.
    No, it doesn't necessarily mean that. Plenty of things are absolutely fixed and are not subject to the degree of interpretation that you're claiming. A perfect example is the 8th Amendment. When the 8th Amendment was drafted, it was manifestly obvious that they did not consider the death penalty to be included in the prohibition on cruel and unusual punishment. Some proponents of the living Constitution have argued that under today's social mores, the 8th Amendment should be reinterpreted to ban the death penalty. That's a situation where it's quite easy to see the difference between what the framers intended and what people are trying to make it into now.

    It is an inevitability and even the strictest Constitutionalists are subject to it. The only difference is that some judges do it intentionally and with full knowledge of doing so and others resist doing so but end up doing so anyways due to lack of awareness of their own cognitive bias.
    And no one would deny that biases can have an impact at the margins. It doesn't follow that because some judges may be biased in some situations, it justifies the wholesale introduction and endorsement of bias in all situations.
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    Re: Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World

    Quote Originally Posted by RightinNYC View Post
    No, it doesn't necessarily mean that. Plenty of things are absolutely fixed and are not subject to the degree of interpretation that you're claiming. A perfect example is the 8th Amendment. When the 8th Amendment was drafted, it was manifestly obvious that they did not consider the death penalty to be included in the prohibition on cruel and unusual punishment. Some proponents of the living Constitution have argued that under today's social mores, the 8th Amendment should be reinterpreted to ban the death penalty. That's a situation where it's quite easy to see the difference between what the framers intended and what people are trying to make it into now.
    But many of the framers arguably did wish to see the Constitution broadly interpreted so it could change with the social mores of the time. In essence, you are simply arguing the motivations of what you interpret one found meant against what you interpret the motivations of another founder meant.

    And no one would deny that biases can have an impact at the margins. It doesn't follow that because some judges may be biased in some situations, it justifies the wholesale introduction and endorsement of bias in all situations.
    Indeed, but the line between judicial activism and judicial review is incredibly thin and perhaps even transparent. There will always be two arguments in which people make a very convincing case that their side is supported by what the founder's envisioned, whether it is from a broad outcome perspective or a narrow process perspective and it will ultimately be up to the particular bias of the judge which way it goes.

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

    Quote Originally Posted by CriticalThought View Post
    But many of the framers arguably did wish to see the Constitution broadly interpreted so it could change with the social mores of the time.
    Such as who? Again, there is a critical distinction between a desire to have the Constitution drafted broadly so as to allow an ever-changing set of laws, and the desire to have the Constitution subject to constant reinterpretation depending on the mood of the day. There is little evidence that a substantial number of the Framers endorsed the latter view. Statements endorsing the former view are often erroneously cited as support for the latter view, when in reality they directly contradict it.

    Indeed, but the line between judicial activism and judicial review is incredibly thin and perhaps even transparent.
    That's because "judicial activism" isn't a defined term like "judicial review" or "living constitution." The fact that people use it improperly doesn't indicate anything about the relative propriety of your favored method of constitutional interpretation.

    There will always be two arguments in which people make a very convincing case that their side is supported by what the founder's envisioned, whether it is from a broad outcome perspective or a narrow process perspective and it will ultimately be up to the particular bias of the judge which way it goes.
    Those cases are far less common than you might think. Even in those relatively rare scenarios, that doesn't mean that the case is decided by the biases of the judges - that's why there are literally dozens of canons of construction.

    As Hamilton himself said in Fed. 78:
    There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them
    Last edited by RightinNYC; 03-07-10 at 04:45 PM.
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