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

CriticalThought said:
And I care why?

As I have stated, I could care less how the government should ideally be run, I'm more interested in how it is actually run. And the way it has ran since 1803 is as the Constitution being treated as a living document, sometimes intentionally, usually inadvertently, but always as a living document.
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So, since you believe the Constitution has no meaning, why do you care at all?
 
Scarecrow Akhbar said:
So, since you believe the Constitution has no meaning, why do you care at all?
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How ludicrous. The Constitution has been around since the late 18th century and it is still going strong. Just because the courts got judicial review thereby inadvertently making the Constitution into a living document in 1803, doesn't mean that the Constitution lost its value. If American history shows us anything, it is that the country has grown stronger as a result. The courts don't always make the right decisions, but they have had a large part in guiding American history. But I guess if you want to ignore the last 200 years, then that is your choice.
 
Groucho said:
Come now, we know that in order to interpret the Constitution, you have to ignore the founding fathers who told you that it should be interpreted (like Jefferson and Madison) and only pay attention to the ones who said that it was set in stone (like none of them).

I mean, seriously. What do lawyers and professors who study history and the law more than anyone else in the entire world know, anyway?
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Care to link me to those statements from Jefferson and Madison that support the living Constitution theory? It's also worth noting that Jefferson is hardly one of the more important figures to focus on in trying to divine the Constitution's meaning.
 
CriticalThought said:
How ludicrous. The Constitution has been around since the late 18th century and it is still going strong.
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Just answer the question. If the words don't mean what they say on the paper, then the paper doesn't have any meaning at all. Since you insist the Constitution has no meaning, why waste time on it at all, it's obviously nothing but a charade for the people seeking power.

CriticalThought said:
Just because the courts got judicial review thereby inadvertently making the Constitution into a living document in 1803, doesn't mean that the Constitution lost its value.
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It has absolutely no value if, via "judicial review", the Congress is now allowed the ability to impose federal public education on the people, when that power simply does not exist in the Constitution as written. Why, if the courts allow the government the power to allocate federal funds for public education without requiring an amendment authorizing it, then the courts will allow the Congress to seize control of the nation's auto industries, it's health care industry, and the banking industry.

Oh, wait, the only thing on that list Congress hasn't done yet is steal the nation's health care industry, and it's a matter of mere weeks before that happens. Since there is no authorization to be found in the Constitution for any of those things, the purpose served by the Constitution is what, exactly? Since the stated purpose of the Constitution is the protection of individual liberty, and the judicial review process has Progressively destroyed those freedoms, what exactly is the Constitution as a "Living Document" under "judicial review" for? Outside of providing a convenient excuse for people who want to disobey the actually intent of the Constitution and seize/expand their power?

Hmmmm?

CriticalThought said:
If American history shows us anything, it is that the country has grown stronger as a result.
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The government has grown stronger as a result. The nation grew stronger bedcause of the industry and creativity of it's citizens. I fail to see how the nation "grew stronger" as a result of Roe v Wade, Plessy v Ferguson, Dred Scot, United States v Miller.

CriticalThought said:
The courts don't always make the right decisions, but they have had a large part in guiding American history. But I guess if you want to ignore the last 200 years, then that is your choice.
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Yes, if you wish to ignore the damage the courts have done, feel free to keep right on doing as you have been.
 
so, barrister, exactly what IS the difference between the activist and constructionist judge?

advertence?

LOL!
 
jamesrage said:
Isn't that accomplished by adding new amendments?
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It's not the only way. How we read things change overtime. It really isn't possible for the person reading today to read it just as those who wrote it read it. Nor can we really read minds. So, in essence, things change as we change. There's nothing new or radical in this.
 
RightinNYC said:
Care to link me to those statements from Jefferson and Madison that support the living Constitution theory? It's also worth noting that Jefferson is hardly one of the more important figures to focus on in trying to divine the Constitution's meaning.
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What, again? How many times do I have to repost those quotes? Do your own research, or alternatively, show me where any founding father argued, after making numerous compromises on the writing of the Constitution, that it was written in stone and only had one meaning and that there could never be any interpretation.
 
Groucho said:
What, again? How many times do I have to repost those quotes?
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You've made two posts in this thread, neither of which contains any quotes. Unless you're referring to some other thread, I think you're mistaken.

Do your own research, or alternatively, show me where any founding father argued, after making numerous compromises on the writing of the Constitution, that it was written in stone and only had one meaning and that there could never be any interpretation.
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Since I never made such a claim and since I understand the difference between "interpretation" and the living document concept that we're discussing, I think I'll pass.
 
RightinNYC said:
Like many in this thread, you're misunderstanding the concept of the Constitution as a "living document."

Nobody denies that the Constitution can be changed over time as we add or subtract various provisions via the amendment process. That's not what "living document" means.

The idea of the constitution as a living document is that the existing words and meaning of the constitution change over time to mean different things depending on how society has changed. The simplest example is that although the 8th Amendment's ban on "cruel and unusual punishment" very clearly allowed capital punishment when it was drafted, a proponent of the constitution as a living document might argue that because society has changed to recognize that capital punishment is bad nowadays, the text of the 8th Amendment that bans "cruel and unusual punishment" should be reinterpreted as banning capital punishment.

In contrast, someone who does not support the idea of the constitution as a living document might argue that "cruel and unusual punishment" means what the framers said and meant, which did not include capital punishment.

Another point where many are getting off course is that they are concluding that if you think that capital punishment should be banned, it means that you must think that the text of the Constitution should be reinterpreted to cover that, thus making the "living document" theory the only logical one. The argument that the constitution must be a living document because Brown v. Board or Loving v. Virginia enacted good policies suffers from the same logical flaw.

In reality, all of these issues could (and have) been dealt with not by reinterpreting the meaning of the Constitution, but by passing laws. If the death penalty is bad, states or Congress are free to pass laws banning it. From an opponent of the living document theory, this protects the legislature's prerogative to make laws, which is a fundamental part of our constitution's structure.
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thanks. doesn't every challenged law require interpretation of the constitution? and doesn't every amendment at least clarify, if not reinterpret, the constitution?
 
RightinNYC said:
You've made two posts in this thread, neither of which contains any quotes. Unless you're referring to some other thread, I think you're mistaken.
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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.
 
constructionists TRY to adhere to original intent

activists DON'T

even the most obscurantist can't obfuscate THAT
 
The Prof said:
constructionists TRY to adhere to original intent

activists DON'T

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

but they usually aren't
 
liblady said:
thanks. doesn't every challenged law require interpretation of the constitution?
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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.
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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?
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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.
 
RightinNYC said:
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.
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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.
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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
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All right....have at it Groucho.....Let's see your counter to Justice Sclia


j-mac
 
Groucho said:
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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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.
 
Groucho said:
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.
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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.
 
liblady said:
again, thanks. this is what i was missing, i think:
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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.
 
RightinNYC said:
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.
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i read j-mac's post re: scalia. it seems to me that he is correct, the framers provided a basis that included the necessary flexibility for the document to evolve as required.

that said, divining the intent of the framers will always be an interpretation, not a science, and subject, unfortunately, to the politics of the justices, as hard as they may or may not struggle against that.
 
liblady said:
i read j-mac's post re: scalia. it seems to me that he is correct, the framers provided a basis that included the necessary flexibility for the document to evolve as required.
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I don't think that's what Scalia was trying to convey, at least to the extent that you're reading him as saying anything that could be construed as support for the living Constitution approach. Scalia is the ur-textualist, and has no hesitation about saying that people who believe in the living Constitution are wrong.

that said, divining the intent of the framers will always be an interpretation, not a science, and subject, unfortunately, to the politics of the justices, as hard as they may or may not struggle against that.
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This is very true to a degree, which is why I think it's important to do everything we can to limit the impact of politics on the judiciary. The situation has gotten so much worse in recent years. Scalia himself likes to point out that he was confirmed 98-0, an act of bipartisanship (and executive deference) that would be unheard of today. It would be nice if both parties would pledge to return to this deferential role at some point in the future and take some off the pressure off the judiciary.
 
OxymoronP said:
The founding fathers understood that the constitution would be and should be able to flex.
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...which is why they included Article V and the 10th amendment.
These two things cover any and every eventuality.
 
Scarecrow Akhbar said:
Just answer the question. If the words don't mean what they say on the paper, then the paper doesn't have any meaning at all. Since you insist the Constitution has no meaning, why waste time on it at all, it's obviously nothing but a charade for the people seeking power.



It has absolutely no value if, via "judicial review", the Congress is now allowed the ability to impose federal public education on the people, when that power simply does not exist in the Constitution as written. Why, if the courts allow the government the power to allocate federal funds for public education without requiring an amendment authorizing it, then the courts will allow the Congress to seize control of the nation's auto industries, it's health care industry, and the banking industry.

Oh, wait, the only thing on that list Congress hasn't done yet is steal the nation's health care industry, and it's a matter of mere weeks before that happens. Since there is no authorization to be found in the Constitution for any of those things, the purpose served by the Constitution is what, exactly? Since the stated purpose of the Constitution is the protection of individual liberty, and the judicial review process has Progressively destroyed those freedoms, what exactly is the Constitution as a "Living Document" under "judicial review" for? Outside of providing a convenient excuse for people who want to disobey the actually intent of the Constitution and seize/expand their power?

Hmmmm?



The government has grown stronger as a result. The nation grew stronger bedcause of the industry and creativity of it's citizens. I fail to see how the nation "grew stronger" as a result of Roe v Wade, Plessy v Ferguson, Dred Scot, United States v Miller.



Yes, if you wish to ignore the damage the courts have done, feel free to keep right on doing as you have been.
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I don't know why you are going on this whole tirade. It is what it is. If you aren't happy with how America has dealt with its Constitution since 1803 then move to a different country.
 
OxymoronP said:
NO new amendments add laws to be defined.
A law by itself does not always create the conditions envisioned by their creation. Thus the Court defines the law, so that it gells with the reality of society.
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There is a BIG difference between:
- looking at a given instance and determiing how the Constitution covers it
- looking for a way to argue that the Constitution covers a given instance.

The latter is the very essence of judicial activisim.
 
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