Quote of the Day
A comment by Addison over at Xrlq’s on penumbra, living constitution stuff:
Yeah, I don’t hate Shakespeare.
I just hate it when it’s performed by actors with English accents on a stage, exactly as written.
Far better to use the stories as a “guideline” and let the actors “ad lib” – and let the audience interact!
January 31st, 2006 at 5:24 pm
I never understood that “Living Constitution” thingy.
What does it mean? Whare are it’s proponents supporting? Is it bad?
Because, given only the words, it seems like a good thing. But mebbe it’s another case of someone using a good name for a bad idea – like the UN.
January 31st, 2006 at 6:51 pm
If there were any substance to the analogy, it might persuade somebody someday. Too bad.
January 31st, 2006 at 7:51 pm
“Living Constitution” means that they can stretch the commerce clause as far as they damn well want; that swampland is now considered navigable waterways and congress can regulate it to a point where you can’t build on it, but you don’t get any compensation for the value that was stolen; that the “eminent domain” clause means that they can take your property for private use in addition to public use and you can’t do a damn thing about it; That words like militia now mean “National Guard”; and that “shall not be infringed” really means “shall not be infringed unless we have a pressing need”.
If they can find new meaning to words penned back in the 19th century, then they can twist and bend the Constitution until it means whatever is in vogue at the moment, it means we don’t effectively have a document that limits the powers of government to control our lives and property.
From Wikipedia: The actual phrase, “living Constitution,” is relatively rare among legal academics and judges, most prefering (sic) to use rhetoric that is more specific and less incendiary. Further, there is disagreement about whether a living Constitution is the same as, implied by, or assumed by judicial activism, which has a similar ambiguity of meaning.
January 31st, 2006 at 7:51 pm
BH:
No kidding. I didn’t realize that Shakespeare was actually a group of people who compromised on the works, and intentionally left things inspecific. Silly me.
February 1st, 2006 at 12:33 am
Aw, *blush*. I’m flattered. Really. I didn’t think I’d win, so I didn’t have a speech prepared.. *ahem* *rustle rustle* FIrst ,I’d like to thank….
So what do I win? 🙂
BH:
It’s not a perfect analogy. Of course, that’s why it’s an analogy. Funny thing, people who I know are of sound mind and temperment knew exactly what I was saying.
See, the thing is… Shakespeare has lots of room for interpretation. (Which is why there are very successful, very famous, very good Shakespearian actors). Which would you rather see, Patrick Stewart as Macbeth, or Wil Wheaton? (Not to pick on wheaton specifically, but just as you know, an analogy).
But there are firm lines set up. And once you step over them in “interpretation” – getting rid of oh, say, IAMBIC PENTAMETER, well, you’re no longer really performing the play as meant.
Which is a long way to say, what I said shortly, and I think Uncle’s excellent, and most intellegently (wait, I already won, I can stop with the compliments) recognition of it shows that he understands what I was saying.
What’s more interesting, is that you just sneered and wandered off.
tgirsch at least could say something comparable in reply, although, if you’re going to talk about weak analogies, I’d have to say I think his are far weaker.
“Congress shall make no law…” “…Shall not be infringed”. Pretty Damn Specific to me. We really don’t see the “inspecific” things picking up until the 1930s, following the “ratification” (as some disagree) of the income tax, and after that, the NFA. Even at that point, for instance, in Miller the USSC upheld “shall not be infringed”.
Griswald and Roe was where a whole lotta “inspecific” things showed up. Including that pesky right to an abortion for any woman, which is totally not specified.
Funny thing, that. And now we’ve gotten to decisions where racial discrimination is OK, but only for apparently, the next 28 years.
The only other better analogy is that of a ball game – and that you guys won’t agree to the rules being written down beforehand, insisting on being able to trump them, based on the circumstances of your team, as the game progresses.
Try and get odds in Vegas of a game set up like that.
February 1st, 2006 at 3:51 am
Addison:
I’m glad you brought up the “Congress shall make no law” thing, because it’s a big part of why I think strict construction is crap. Because if you read it that way, your speech rights, your press rights, and your free exercise rights are protected from Congress only, meaning that the executive or that any state or local government could take a giant crap all over those rights with absolutely no Constitutional foul at all. Yes, I realize that most state constitutions protect against this to some degree, but state constitutions are much easier to amend, generally speaking, and I’m not so sure states should be allowed to infringe on such rights even if they want to.
And you’re right “shall not be infringed” is pretty damn specific, but so is “well-regulated militia,” not that any of the pro-gun types give a fraction of a shit about that clause. 😉 So don’t gimme the “only liberals read around stuff” BS.
As for Griswold and Roe, I irrespective of how they were actually decided, I think an excellent case can be made for those rights being under the purview of the 9th Amendment (if judicial liberals are often guilty of ignoring the 10th or relegating it to no meaning, the same can be said of judicial conservatives and the 9th). I somehow doubt that the framers meant the ninth to say “even though these rights aren’t disparaged by their lack of explicit listing, they’re not afforded any protection, either.” Because if they meant that, then there was really not much point to putting the 9th in at all. But again, to a strict constructionist, the only rights worth protecting seem to be the ones that are explicitly specified, and not necessarily even all of those.
Further examples of the types of probably-intentional lack of specificity I’m talking about include “general welfare,” “cruel & unusual,” “unreasonable,” etc. In any constitutional debate, we have to figure out what those terms mean, and probably more importantly, who gets to decide what those terms mean. We can play the Scalia voodoo game of trying to divine what the framers intended, as if they were even of one mind about their intent, but that doesn’t really work well. Scalia himself is a good example why not, what with his consitently mining originalist writings to find opinions that conveniently align with his personal political preferences, and conveniently ignoring those that don’t.
All that said, I don’t argue that we ought to be able to make things up as we go along (contrary to the straw man judicial conservatives love to build), and I’ll be the first to admit that Congress (with the court’s complicity) has streched the meaning of “commerce” beyond the breaking point. To my mind, we are (or should be) still bound by what the text of the constitution and its amendments say. I just argue that some things like the 9th are more open to interpretation — and, I suggest, intentionally so — and that it’s folly to try and limit the constitution to what we suspect the framers may have intended for it to mean. We don’t have their intent, but we do have the text.
My main point in my flame bait, however, was simply that almost no one would actually want to live in an America governed by strict constructionist jurisprudence, where Brown v. Board of Education would be considered an “activist” ruling, and where the states could trounce personal liberties at will.
February 1st, 2006 at 5:26 am
Most libertarians consider the right to privacy one of a billion or so unenumerated rights, and it extends further (much further) than just the right to an abortion.
Oh and we’ve already figured out that the heck “well-regulated militia” means, and it implies the right for free people to practice their paramilitary exercises on land held in the commonwealth, without getting a government permission slip. How else are we gonna be well-regulated if we don’t practice? (Don’t worry, we’ll check first to be sure that the “Rainbow Family of Living Light” isn’t downrange).
February 1st, 2006 at 4:02 pm
So, basically, because I support a “small government”, I should be against the concept of a “Living Constitution”?
February 2nd, 2006 at 5:20 pm
tgirsch:
” Because if you read it that way, your speech rights, your press rights, and your free exercise rights are protected from Congress only, meaning that the executive or that any state or local government could take a giant crap all over those rights with absolutely no Constitutional foul at all.”
Executive? Howso? If you stick to strict construction, there’s no way for the executive to do *anything* about that.
Now, state/local – that’s another story. So, to use your way of thinking, we don’t need to fix it with an amendment to make CLEAR what we mean, we’ll just.. well, I’m not sure how you can square that with it meaning *anything*.
That’s the problem with *not* being a strict constructionist. We’re better off to be *certain* of what the rules are BEFOREHAND. Want to go pursue your free speech case to the USSC, and have them toss it out because TV wasn’t forseen? Toss the Electoral College, because one of the reasons for it (travel time) isn’t an issue? How do you *ever* know what the rules are if they’re continually being flexed and “interpreted” – even without any real basis for that interepretation?
“And you’re right “shall not be infringed” is pretty damn specific, but so is “well-regulated militia,””
Which is a explanatory clause. “A well regulated Militia, being necessary to the security of a free State, *the right of the people to keep and bear Arms, shall not be infringed.*” The “well regulated” is quite specific. But “regulated” has changed what we use it for over the years. So your “strict construction” falls on it’s face. And I know you’ve seen enough to have it proven to you, I’m not going to cite chapter and verse to you again. Suffice it to say, “regulated” in a military terminology back then meant something totally different than it does now, which is why “original intent” matters.
“not that any of the pro-gun types give a fraction of a shit about that clause. So don’t gimme the “only liberals read around stuff” BS.”
All of us are well-regulated members of the militia, so I’m not sure what you’re complaining about. Personally, I’ve got an M1A and 1000 rounds of ammo for it at all times, in case I’m needed.
Now, the whole point about “original intent” is important. It actually goes RIGHT back to my Shakespeare comment.
There’s some comment that the famous line in Henry VI:
“The first thing we do, let’s kill all the lawyers,”
Was not referring to lawyers as we call them today, but to Parliment – the legislators. The more common term would have been “Barrister” for those who sued. Which was it? Since we’re talking Shakespeare, and nobody really minds threatening lawyers (along with white males, the only Decent Target left for bigotry), it’s a moot point.
But not so with how the government behaves. And words do shift, and change. A current pet peeve of mine is the degredation of the word “decimate”. It is used now, even by those who should know better to mean “demolish” or “annilate”. Total destruction. “Decimate” _meant_ to “reduce by 10%”. (One out of ten in a Roman military unit being killed for failing to meet objectives).
So when you see “Decimate”, does it mean, demolished? Or reduced? You have to go to context, which makes it less certain. And that we can discuss, and argue and debate, HOW you use the context, to read the Constitution. Or you can try and dot every i and cross every t and draw tight every loophole, and end up with a 300+ page “Constitution” like the EU has/had.. and that made more problems and loopholes.
“But again, to a strict constructionist, the only rights worth protecting seem to be the ones that are explicitly specified, and not necessarily even all of those.”
Untrue in at least my case, and I’m not sure you can show me an example of someone who “not necessarily even” cares about the explicit specification.
“My main point in my flame bait, however, was simply that almost no one would actually want to live in an America governed by strict constructionist jurisprudence”
Alternatively, it would force people to be much more specific in their laws, and their amendments – instead of making vague laws, and leaving it up to the courts or the bureacracy to make the actual rules.
“where Brown v. Board of Education would be considered an “activist” ruling, and where the states could trounce personal liberties at will.”
Those repressive states might have a hard time keeping people in the borders, mighten they? And it might be instructive to see what kind of laws/constitutional amendments would quickly find their way into Constitutional bedrock.
As opposed to now, where Federal courts strike down parts of State Constitutions, claiming that they violate.. the.. State Constitution. (Not against the Federal).
But to take where we are now, with 3 of the Justices of the USSC, making speeches talking about “international law” and incorporating it into USSC decisions, and to say that *it* is superior to a strict reading – or at least a stricter reading… well, I’d rather have a crappy rulebook than one that will be given to me *after* each play.
February 2nd, 2006 at 5:22 pm
Minor afterthought:
“Alternatively, it would force people to be much more specific in their laws, and their amendments – instead of making vague laws, and leaving it up to the courts or the bureacracy to make the actual rules.”
Implied in that is “Or make many LESS laws and LESS rulings”.
Which would work far better, in my opinion.
February 3rd, 2006 at 8:18 pm
So, to summarize – in order to understand my own future responses to “Living Constitution”:
The Constitution should be interpreted by understanding the meanings and intents of the words and phrases at the time of writing. Those meanings and intents should then be evaluated in modern words and terms in order apply the intent of the Constitution to our current society.
So rather than read the words literally, or change their meaning, we should expand their definition and translate them to modern usage.
Right?
February 6th, 2006 at 5:16 pm
Addison:
So how, then, do you defend Brown v. Board of Education? Or don’t you?
That’s ultimately my point. Under strict constructionism and strict original intent, there’s absolutely nothing to prevent things like institutional racial discrimination. And if that’s the case, then the Constitution doesn’t really protect much of anything at all worth protecting. Ergo, it’s crap.
By the way, most of Shakespeare is crap. 🙂
February 6th, 2006 at 5:24 pm
My copy has written in it a means to change it.
On that, we agree.