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

No, the opposite is true. What the quote represents is Hamilton's position that the Constitution should only have in it general provisions. Since society changes, these general provisions can be used to interpret the changing societial needs.
I thought this point was already provided for, and I am asking, were they not called amendments? Again, pardon my ignorance, but I thought that so called "societal changes" were one of the reasons the founders (plural) framed it this way.

Forgive me for ducking out for a while. I've got to go make a patrol of the Badlands.
 
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No, the opposite is true. What the quote represents is Hamilton's position that the Constitution should only have in it general provisions. Since society changes, these general provisions can be used to interpret the changing societial needs.

It's not really possible to add much context to the phrase since I can't find any evidence that that's actually an original Hamilton quote, but I stand by my original statement. He's not saying that the general provisions of the Constitution should be used to reflect changing societal needs, except in that their generality allows the legislature to pass laws that reflect contemporary views. He explicitly notes that Constitutions are permanent and by proxy not subject to reinterpretation. Think about it - if the Constitution could just be reinterpreted to reflect the values of the times, then why would it matter whether it was drafted narrowly or broadly? The only way that his recommendation makes any sense is if the meaning of the Constitution is fixed.

In Hamilton's mind, the purpose of the Constitution was to lay out a broad set of rules defining some fundamental rights and procedures. For everything else, we would have to look to the legislature.
 
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What it means is that a constitution must not be ultra specific.

True.

Like it saying a right to free speech instead of speech by word of mouth or a printing press or the right to bear arms instead of the right to bear flintlock muskets and bladed weapons.

Exactly. That way when future advances occur or society progresses in different ways, the Constitution still applies and is still used without fail.

It's provisions cover future technological developments and thus there is no need to update those specific sections, for the most part.

Correct... but add future societal changes, too.

A constitution that is not grounded, is nothing at all.
If it is so flexible, who is to decide when and where that flexibility it can apply?
Can free speech be clamped down on because a person in power thinks society shouldn't have that wide option?

There is a difference between flexibility/interpretation based on current societal/technological conditions and disregard for the essence of what has been written.

I do not think you should enable someone to smudge your contractual assets and you get nothing in return.
It's a bad deal for you and a good deal for them.

If money is shown to be irrelevant, then it hurts no one.
 
Correct... but add future societal changes, too.

I agree but for the most part our constitution doesn't deal with social issues at all.
They are supposed to be freely decided by individuals.

There is a difference between flexibility/interpretation based on current societal/technological conditions and disregard for the essence of what has been written.

I understand but one flexibility leads to another and then another.
Finally you are so far away from an original intent that you might as well had thrown it out in the first place.

I look to things like Australia and some parts of Europe that supposedly value free speech highly but then they try to censor the internet and what they determine to be hate speech.
What's next I wonder?

If money is shown to be irrelevant, then it hurts no one.

True but this has yet to be proven with respect to rights.
We may be far from our past as far as technology goes but we are not far away from despotic human desires that have plagued the world prior to the creation of the U.S.

I keep that in mind and guard what is mine fervently.
 
It's not really possible to add much context to the phrase since I can't find any evidence that that's actually an original Hamilton quote, but I stand by my original statement. He's not saying that the general provisions of the Constitution should be used to reflect changing societal needs, except in that their generality allows the legislature to pass laws that reflect contemporary views. He explicitly notes that Constitutions are permanent and by proxy not subject to reinterpretation. Think about it - if the Constitution could just be reinterpreted to reflect the values of the times, then why would it matter whether it was drafted narrowly or broadly? The only way that his recommendation makes any sense is if the meaning of the Constitution is fixed.

In Hamilton's mind, the purpose of the Constitution was to lay out a broad set of rules defining some fundamental rights and procedures. For everything else, we would have to look to the legislature.

And I, too, stand by my original statement. If the Constitution was narrowly drafted, the document would need to be revised fairly often to reflect societal and technological changes, thus contradicting his statement that they would need to be permanent. Hamilton's idea was that the Constitution would be a broadly drafted document that could pertain to most current and future situations with permanence. Broad drafting is the only way his statement makes sense. Considering we have had 220+ years of use out of the document, and society has gone through VAST changes during that time, I'd say the broad interpretation has served us well.
 
I agree but for the most part our constitution doesn't deal with social issues at all.
They are supposed to be freely decided by individuals.

The Constitution is all about societal issues. How a society is ordered, what the rules of that society are, and how the society operates.



I understand but one flexibility leads to another and then another.
Finally you are so far away from an original intent that you might as well had thrown it out in the first place.

I look to things like Australia and some parts of Europe that supposedly value free speech highly but then they try to censor the internet and what they determine to be hate speech.
What's next I wonder?

The Constitution provides a structure. You can't change the structure. The basic meaning of the structure is in tact. However, how that structure is used at a period of time can be interpreted differently to some extent... as long as the structure remains in place. Free speech is the structure.



True but this has yet to be proven with respect to rights.
We may be far from our past as far as technology goes but we are not far away from despotic human desires that have plagued the world prior to the creation of the U.S.

I don't agree completely. Though human psychology hasn't changed much, it's application and societal infrastructure and responses have.

I keep that in mind and guard what is mine fervently.

I suppose I am somewhat open to the application of change.
 
Again, this is completely false. The very concept of the concept as a living document didn't even come into existence until around 80 years ago.

Hahahaha!

The practice can and does precede the concept. The fact that the Marbury v. Madison ruling exists is proof of the Supreme Court treating the Constitution as a living document all the way back in 1803 even if the term had not yet been conceived. Leave it a right winger to miss the obvious.
 
And I, too, stand by my original statement. If the Constitution was narrowly drafted, the document would need to be revised fairly often to reflect societal and technological changes, thus contradicting his statement that they would need to be permanent.

You're exactly right on the second part, but that's just further proving my point.

Our constitution protects the right to free speech, not merely the right to say things on the street corner. Thus, speech encompasses phone calls, IMs, and sites like this. Does that mean that "the right to free speech" was reinterpreted over time? No- speech today means what speech meant then; it's the same underlying idea regardless of the method of conveyance.

The Constitution was broadly drafted because if it had said "the right to say things on the street corner," then it would have had to be amended frequently over time. The idea of simply reinterpreting it to cover modern conceptions of speech was never even an option for Hamilton.

Hamilton's idea was that the Constitution would be a broadly drafted document that could pertain to most current and future situations with permanence. Broad drafting is the only way his statement makes sense. Considering we have had 220+ years of use out of the document, and society has gone through VAST changes during that time, I'd say the broad interpretation has served us well.

And again, none of this is in conflict with what I'm saying. The Constitution is drafted broadly because it's a Constitution, not a law. It's not meant to deal with the day to day minutiae of governing, precisely because its language and meanings are inflexible. By drafting it broadly, we allow the legislature to respond to the public's desires.
 
Hahahaha!

The practice can and does precede the concept. The fact that the Marbury v. Madison ruling exists is proof of the Supreme Court treating the Constitution as a living document all the way back in 1803 even if the term had not yet been conceived. Leave it a right winger to miss the obvious.

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.
 
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The Constitution is all about societal issues. How a society is ordered, what the rules of that society are, and how the society operates.

Yes but as far as specific things go, that is left wide open to individuals.
You basically don't have to alter the Constitution at all for that.


The Constitution provides a structure. You can't change the structure. The basic meaning of the structure is in tact. However, how that structure is used at a period of time can be interpreted differently to some extent... as long as the structure remains in place. Free speech is the structure.

I have to disagree.

You see the slow erosion of some provisions even though they are clear with intent.

Free speech zones, firearm bans and registrations.
None of those things are allowed, yet they exist.


I don't agree completely. Though human psychology hasn't changed much, it's application and societal infrastructure and responses have.

Those that have the power use it for themselves and those that don't are merely at their mercy.
It my not be as flagrant(like killing a crap load of people) but it does happen with regularity.

I suppose I am somewhat open to the application of change.

I think people view strict constructionists as opposed to change which isn't the case at all.
The problem is that in the past some Constitutional amendments have produced lousy results(allowing income taxes, Presidential term limits) while others have been pretty decent(13,14,15th amendments).

With our current groups of legislators (I'm not limiting this to one particular party), I wouldn't want them to touch what is left of the Bill of Rights with a 1000 ft pole.
They have shown how corrupt and conniving they are.
 
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You're exactly right on the second part, but that's just further proving my point.

Our constitution protects the right to free speech, not merely the right to say things on the street corner. Thus, speech encompasses phone calls, IMs, and sites like this. Does that mean that "the right to free speech" was reinterpreted over time? No- speech today means what speech meant then; it's the same underlying idea regardless of the method of conveyance.

The Constitution was broadly drafted because if it had said "the right to say things on the street corner," then it would have had to be amended frequently over time. The idea of simply reinterpreting it to cover modern conceptions of speech was never even an option for Hamilton.

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.



And again, none of this is in conflict with what I'm saying. The Constitution is drafted broadly because it's a Constitution, not a law. It's not meant to deal with the day to day minutiae of governing, precisely because its language and meanings are inflexible. By drafting it broadly, we allow the legislature to respond to the public's desires.

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.
 
Yes but as far as specific things go, that is left wide open to individuals.
You basically don't have to alter the Constitution at all for that.

You're right. There is no need to alter the Constitution for societal changes. Whatever is needed is right there.


I have to disagree.

You see the slow erosion of some provisions even though they are clear with intent.

Free speech zones, firearm bans and registrations.
None of those things are allowed, yet they exist.

Even Oliver Wendall Holmes knew that free speech wasn't completely unencumbered. Also, you can't privately own a nuclear missile. When society/technology changes, things can be reinterpreted without the need to alter the structure.


Those that have the power use it for themselves and those that don't are merely at their mercy.
It my not be as flagrant(like killing a crap load of people) but it does happen with regularity.

This would happen in any society. It happens a lot less here because of the ability of the Constitution, if used correctly, to curb these abuses.

I think people view strict constructionists as opposed to change which isn't the case at all.

I wouldn't say opposed to change. I would just say they view the Constitution differently. It really does go back to the Hamilton vs. Jefferson debate.

The problem is that in the past some Constitutional amendments have produced lousy results(allowing income taxes, Presidential term limits) while others have been pretty decent(13,14,15th amendments).

Eh, only Amendment I have a problem with is the 22nd, but that's for another debate.

With our current groups of legislators (I'm not limiting this to one particular party), I wouldn't want them to touch what is left of the Bill of Rights with a 1000 ft pole.
They have shown how corrupt and conniving they are.

I would agree, completely, and that is not my position. Too many checks and balances for that to occur. Just as I think it would be awful to have only strict constructionists on the SCOTUS, I would also hate to see only developmentalists. Same with Congress. Without a good balance of conservatives, liberals, and everything in between we get one voice which does not represent the people of the US.
 
Law professor at Berkely.

I've been there many times. In my experience, the most liberal-oriented university campus in the nation.

Edit -- Check that. It's beyond liberal. Leftist is more apt.
 
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Law professor at Berkely.

I've been there many times. In my experience, the most liberal-oriented university campus in the nation.

Edit -- Check that. It's beyond liberal. Leftist is more apt.
It's progressive.
 
There is nothing in the Constitution that gives courts the power of judicial review. The courts gave themselves that power in the case of Marbury v. Madison in 1803.

Nothing in the constitution about a Presidents cabinet neither.


The courts usurped more power than the Constitution granted them and without a Constitutional Amendment. Arguably some of the founders wanted the courts to have the power of judicial review, but it was never explicitly outlined in the Constitution. Therefore, the typical Conservative argument is that the Supreme Court has been acting outside its Constitutional authority for over 200 years since the Constitution should be considered a fixed document where alterations should only come from amendments.

I disagree with that take, the Supreme court has been vital in protecting the spirit of the constitution. I dont see them as acting outside the constitution, I think the Founders envisioned a Court that would protect us from the Tyranny of the Majority. For example the Court should have never allowed prohibition even though it was passed through majority, prohibition was a direct violation of peoples civil rights. As is the legislation against drugs.
 
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.
 
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.
 
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.
 
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.

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.
 
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.
 
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.
 
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?
 
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.
 
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.
 
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
 
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