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Living Constitution v. Literalist

mike49

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The split that occurs in our country over Judges comes down to the beliefs of these individuals: Breyer and Scalia. Breyer the "Living Constitution"...Scalia the "Literalist".

I come down on the Scalia side.

The constitution must be interpreted as was meant when it was ratified. If this is not true then we have no constitution. Instead we are ruled by the whims of the Justices on the court. They can decide, based on their "goodness", what the constitution says. We can take all of our social issues to them and they can "devine" what is best for us.

We can be sheep and without a democratic responsibility to decide major issues of the day within the democratic process.

The Living Constitution is no constitution.
 

Kandahar

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I generally agree that a literal interpretation of the Constitution is better, but I don't think Antonin Scalia really embodies that quality. All to often, he interprets the Constitution to match his own political views just like Stephen Breyer does.

For example, Scalia believes that the federal government doesn't have the right to make nationwide laws protecting abortion...yet he does believe the federal government has the right to make nationwide laws prohibiting drugs. The reality, of course, is the federal government has no constitutional right to do either of these things. I'm hard-pressed to find any constitutional distinction between these two scenarios; what it comes down to is that Scalia simply doesn't like drugs and abortion.

Scalia is only a literalist when it suits his purposes.
 

mike49

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Kandahar said:
I generally agree that a literal interpretation of the Constitution is better, but I don't think Antonin Scalia really embodies that quality. All to often, he interprets the Constitution to match his own political views just like Stephen Breyer does.

For example, Scalia believes that the federal government doesn't have the right to make nationwide laws protecting abortion...yet he does believe the federal government has the right to make nationwide laws prohibiting drugs. The reality, of course, is the federal government has no constitutional right to do either of these things. I'm hard-pressed to find any constitutional distinction between these two scenarios; what it comes down to is that Scalia simply doesn't like drugs and abortion.

Scalia is only a literalist when it suits his purposes.

I would disagree with you on the drugs and abortion question.

Roe v. Wade should be overturned because it lacks any credibility within the constitution. It is clearly a State issue and should be dealt with there.

The drugs issue is a Federal one. The Congress has the power to regulate interstate commerce. Drugs are interstate commerce.
 

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Kandahar said:
Scalia believes that the federal government doesn't have the right to make nationwide laws protecting abortion...yet he does believe the federal government has the right to make nationwide laws prohibiting drugs. The reality, of course, is the federal government has no constitutional right to do either of these things.
Interstate commerce clause.
If the federal government, under the powers granted to it by this clause, as upheld more than 70 years ago, can force an Ohio wheat farmer to sell his crop, then it can regulate and/or prohibit the sale of drugs.
 

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mike49 said:
Roe v. Wade should be overturned because it lacks any credibility within the constitution. It is clearly a State issue and should be dealt with there.

The drugs issue is a Federal one. The Congress has the power to regulate interstate commerce. Drugs are interstate commerce.
Correct on both counts, except that the sale of drugs may also be intrastate commerce that affetcts interstate commerce - something the FedGvmnt also has the power to regulate.
 

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galenrox said:
Well, hypothetically, by that logic the commerce clause could also prohibit abortion laws, because abortions cost money, and since restrictions can force people go out of state to get the abortion, that would qualify as interstate commerce, and thus the federal government would also have the right to cover that too.
Well, if you want to argue that, thats fine.
But it doesnt do anything to weaken the argument that the ICC does give the FedGov the power to ban the sale of drugs.
 

Kandahar

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mike49 said:
I would disagree with you on the drugs and abortion question.

Roe v. Wade should be overturned because it lacks any credibility within the constitution. It is clearly a State issue and should be dealt with there.

The drugs issue is a Federal one. The Congress has the power to regulate interstate commerce. Drugs are interstate commerce.
How is the sale of drugs more affected by the Interstate Commerce Clause than the sale of abortions?

The people who wrote the Constitution never had any intention of the Interstate Commerce Clause being used to justify whatever the hell the federal government felt like doing. This clause has been absolutely raped by our government during the last 70 years. Congress should be restricted to the powers enumerated in the Constitution.
 

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Kandahar said:
This clause has been absolutely raped by our government during the last 70 years. Congress should be restricted to the powers enumerated in the Constitution.
Well, I have to agree with you there.
 

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This whole precident that because the Federal government can regulate interstate commerce, it can also regulate anything that "affects" interstate commerce should be overturned, in my opinion. EVERYTHING affects interstate commerce, and therefore the precident destroyed the limits set forth by our constition and is unconstitutional.

I believe that the constitution should be taken literally. Otherwise, it has no meaning. What if you were talking to your boss about your employment contract, and the boss says, "well - this is actually a living and breathing document." That's not good news.

There are certain phrases that are meant to be reinterpreted. "Cruel and Unusual punishment" for example changes and attitudes change and as we learn more about the various kinds of punishments and their effects on human beings.

However, I believe that phrases such as this are few, whereas most of the constitution is pretty darn clear.
 

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The bill of rights isn't vauge at all. There is only one way to interpert it. Its not a piece of literiture that can be interperted a majority of different ways but a legal document.
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 

mike49

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Kandahar said:
How is the sale of drugs more affected by the Interstate Commerce Clause than the sale of abortions?

The people who wrote the Constitution never had any intention of the Interstate Commerce Clause being used to justify whatever the hell the federal government felt like doing. This clause has been absolutely raped by our government during the last 70 years. Congress should be restricted to the powers enumerated in the Constitution.
I agree that it has been abused, I'm just not sure how to pull back from it. There are more than a few things that this concerns. It is entrenched.


Connecticutter,

The cruel and unusual phrase, you are correct in that attitudes change, I'm not convinced that the court should decide on a change, based on attitude, without very convincing evidence. Otherwise this should be left to the States. When this phrase was invisioned in the Bill of Rights, the States were not bound by it. The court knowing this should allow the States a lot of room here. They do not, as we seen in the prohibition by the court against executing minors.
 

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mike49 said:
The cruel and unusual phrase, you are correct in that attitudes change, I'm not convinced that the court should decide on a change, based on attitude, without very convincing evidence. Otherwise this should be left to the States. When this phrase was invisioned in the Bill of Rights, the States were not bound by it. The court knowing this should allow the States a lot of room here. They do not, as we seen in the prohibition by the court against executing minors.
Well, doesn't that clause plus the 14th ammendment allow the courts to strike down state laws which perscribe cruel and usual punishment?

I guess its actually pretty clear to find out if a punishment is unusual. If there's no precedent for a certain form of punishment, and then out of the blue a state starts to do it, can't that be overruled?

Of course, if the punishment has been used for years and years, then it can't be overruled because its not unusual. If we think its bad, we should have to go to the states.

The grey area is when a punishment goes out of use, and then many years later they want to bring it back. It then goes from "usual" to "unusual" at some point - which will somehow have to be determined.

Am I making sense here? Are there any lawyers out there who can tell me how this actually works?
 

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There are many on both sides that go overboard, imv. The key is keeping the spirit of the Constitution- the government pursuing a path of freedom and happiness based on true and righteous principles.

This spirit of the Constitution does not protect someone from yelling fire in a theatre that is not on fire. It does not allow the protection of slavery under the banner of state rights. It does not try and pack the Supreme Court. It institutes laws against drugs because they enslave the individual and lessen the freedom and happiness of the addict's innocent children and family.
 

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Connecticutter said:
Well, doesn't that clause plus the 14th ammendment allow the courts to strike down state laws which perscribe cruel and usual punishment?

I guess its actually pretty clear to find out if a punishment is unusual. If there's no precedent for a certain form of punishment, and then out of the blue a state starts to do it, can't that be overruled?

Of course, if the punishment has been used for years and years, then it can't be overruled because its not unusual. If we think its bad, we should have to go to the states.

The grey area is when a punishment goes out of use, and then many years later they want to bring it back. It then goes from "usual" to "unusual" at some point - which will somehow have to be determined.

Am I making sense here? Are there any lawyers out there who can tell me how this actually works?
In determining "cruel and unusual" they sometimes use an 'evolving standard'. And they have discontinued execution of the mentally ill, and minors. So, it's not simply ok if the punishment has been around for years and years.

Atkins v Virginia
Roper v Simmons

These cases speak to "cruel and unusual".
 

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This spirit of the Constitution does not protect someone from yelling fire in a theatre that is not on fire.
:roll: OKay if someone sued on the basis of their first ammendment rights being violated because they were arrested for yelling 'fire' in a movie theatre, I would not be so rediculous as to say that this was logical.
 

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laska said:
This spirit of the Constitution does not protect someone from yelling fire in a theatre that is not on fire. It does not allow the protection of slavery under the banner of state rights. It does not try and pack the Supreme Court. It institutes laws against drugs because they enslave the individual and lessen the freedom and happiness of the addict's innocent children and family.
You have to do some legalistic gymnastics to arrive at that conclusion for your last point. Drugs "enslave the individual"? That's your own opinion, and is most definitely NOT what the Constitution says. Enslavement, under the Constitution, requires an enslaver. Same thing about the addict's "innocent children and family": Your personal opinion of their relative degree of "freedom and happiness" is NOT mentioned anywhere in the Constitution.

If we're going to interpret (i.e. ignore) the constitution in a way to maximize the "freedom and happiness" of everyone involved in any situation, why stop at drugs? Why not legislate against gambling, making bad investments, swearing around children, allowing children to play rough sports, etc.? The irony, of course, is that if you outlaw everything to promote "freedom and happiness," you're left with a society that is most definitely unfree and unhappy.
 
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Connecticutter

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mike49 said:
In determining "cruel and unusual" they sometimes use an 'evolving standard'. And they have discontinued execution of the mentally ill, and minors. So, it's not simply ok if the punishment has been around for years and years.

Atkins v Virginia
Roper v Simmons

These cases speak to "cruel and unusual".
But if the punishment has been around for years and years, then it's not unusual. Therefore, it can't be cruel and usual, because it's lacking the "unusual" part. Unless of course, we're saying that cruel is enough.

About the evolving standards - apparently the standards get stricter and stricter as we go on. Can the standards evolve the other way? If attitudes change could "cruel" become a term as meaningless as "interstate"?
 

mike49

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Connecticutter,

Here is a quote from Furman v Georgia (1972):



Since the Bill of Rights was adopted, this Court has adjudged only three punishments to be within the prohibition of the Clause. See Weems v. United States, 217 U.S. 349 (1910) (12 years in chains at hard and painful labor); Trop v. Dulles, 356 U.S. 86 (1958) (expatriation); Robinson v. California, 370 U.S. 660 (1962) (imprisonment for narcotics addiction). Each punishment, of course, was degrading to human dignity, but of none could it be said conclusively that it was fatally offensive under one or the other of the principles. Rather, these "cruel and unusual punishments" seriously implicated several of the principles, and it was the application of the principles in combination that supported the judgment. That, indeed, is not surprising. The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and in most cases it will be their convergence that will justify the conclusion that a punishment is "cruel and unusual." The test, then, will ordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.

Furman v Georgia, 408 U.S. 238 (1972)



The term "unusual" seems to mean "arbitrary".
 

TurtleDude

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FinnMacCool said:
:roll: OKay if someone sued on the basis of their first ammendment rights being violated because they were arrested for yelling 'fire' in a movie theatre, I would not be so rediculous as to say that this was logical.

In all fairness, if you could conjure up the spirits of Madison et al you would find that they intended POLITICAL speech to be protected-not yelling fire in order to cause panic or purveying ads for weight loss potions or for "hot Russian brides" etc
 

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Kandahar said:
You have to do some legalistic gymnastics to arrive at that conclusion for your last point. Drugs "enslave the individual"? That's your own opinion, and is most definitely NOT what the Constitution says. Enslavement, under the Constitution, requires an enslaver. Same thing about the addict's "innocent children and family": Your personal opinion of their relative degree of "freedom and happiness" is NOT mentioned anywhere in the Constitution.

If we're going to interpret (i.e. ignore) the constitution in a way to maximize the "freedom and happiness" of everyone involved in any situation, why stop at drugs? Why not legislate against gambling, making bad investments, swearing around children, allowing children to play rough sports, etc.? The irony, of course, is that if you outlaw everything to promote "freedom and happiness," you're left with a society that is most definitely unfree and unhappy.
The Bill of Rights does not protect freedom of speech or freedom of religion, etc., if an individual or group's "freedom" undermines another's freedom. The Constitution in no way bans environmental regulation, labor laws, decency laws, drug laws, food inspection, etc. Say if the majority feel the negative aspects of gambling outweigh the positive and would interfere in their freedom, then in my view they can ban or limit this if they so decide. Gambling tends to increase crime and many children and spouses suffer greatly from compulsive gambling. If a religion wants to worship pluto and hit pinyattas all day, that is protected under freedom of religion, but if they decide their god wants them to run down a public street naked, this is not protected under the spirit of the Constitution.

True freedom is obedience to true principles. Freedom from law leads to anarchy and misery.
 

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laska said:
The Bill of Rights does not protect freedom of speech or freedom of religion, etc., if an individual or group's "freedom" undermines another's freedom. The Constitution in no way bans environmental regulation, labor laws, decency laws, drug laws, food inspection, etc. Say if the majority feel the negative aspects of gambling outweigh the positive and would interfere in their freedom, then in my view they can ban or limit this if they so decide. Gambling tends to increase crime and many children and spouses suffer greatly from compulsive gambling. If a religion wants to worship pluto and hit pinyattas all day, that is protected under freedom of religion, but if they decide their god wants them to run down a public street naked, this is not protected under the spirit of the Constitution.

True freedom is obedience to true principles. Freedom from law leads to anarchy and misery.
sounds like Orwell was correct but maybe I am not hearing deutschland deutschland uber alles either.

Drug laws is something Congress was never empowered to enact and just because FDR and his intimidated lap dog judges said otherwise doesn't make it right
 

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TurtleDude said:
In all fairness, if you could conjure up the spirits of Madison et al you would find that they intended POLITICAL speech to be protected-not yelling fire in order to cause panic or purveying ads for weight loss potions or for "hot Russian brides" etc
Well, in all fairness, you would also find that the founders' intentions were the last thing Madison thought one should base a judicial philosophy on.

"Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution." He also said that it was impossible to discover what the "intent" was because the members all had different intentions and not all members took part in all discussions.
5 Annals og Cong. 775-776, as quoted in The Bill of Rights and The Politics of Interpretation, by Robert Peck.
 

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9TH said:
Well, in all fairness, you would also find that the founders' intentions were the last thing Madison thought one should base a judicial philosophy on.

"Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution." He also said that it was impossible to discover what the "intent" was because the members all had different intentions and not all members took part in all discussions.
5 Annals og Cong. 775-776, as quoted in The Bill of Rights and The Politics of Interpretation, by Robert Peck.
I'm not sure that we have to figure out the intention of every founder.

The meanings of phrases, words, etc., is more of what this debate is about.
 

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mike49 said:
I'm not sure that we have to figure out the intention of every founder.
The meanings of phrases, words, etc., is more of what this debate is about.
OK, let's take the word "literalist". That which you ascribed to Scalia, that he's only a literalist when it suits his purpose, I ascribe to every so-called literalist judge I've ever read. I find the philosophy of literalism and original intent to be self contradictory and wholly unsustainable.

One of the foundations of the literalist philosophy is the opposition to recognizing rights not specifically mentioned in the Bill of Rights. This line of thought is a direct contradiction to a literal reading of the language of the Ninth Amendment. This is why many literalists take the Bork line and call the Ninth, as he did, "an indecipherable ink blot". That's their whole philosophy - The Ninth must be meaningless because it destroys the foundation of their philosophy.

Original intent is the same thing. If the Madison quote is any clue, the founders left much of the language broad enough to encompass future changing circumstances. They knew they weren't perfect so they allowed that future generations might differ on the details of what some of the language should mean. How you can know what the founders would have thought of the internet, satellite communications, death with dignity, etc., is quite beyond me.

The Bill of Rights is a not a specific shopping list - "this much and no more". Instead, it is a set of examples to illustrate the broader points of liberty, freedom, and justice. It's up to Judges to interpret the Constitution, (with respect for but not limited only to, history and precedent) and reason out the details of how these principles should apply in the 21st century.
 

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There is nothing in the United States Constitution that is false even if it is taken literally. Some might point to the prohibition on quartering, for example, as a reason for making the Constitution a "living" document. While it may be superfluous at the present time, it is still correct. If the military attempted to house itself in private residences without the consent of the owners, such an act would be unethical and rightfully a violation of the 3rd Amendment. Treating the Constitution, which is based on a priori truths, as a "living" document that should "change with the times" has led to multiple evils. There is abortion, which violates the 5th and the 14th Amendments. There is gun control, which violates the 2nd Amendment. There is the Patriot Act, which violates the 4th and 5th Amendments. The school prayer ban violates the 1st Amendment. In fact, the current level of judicial power is a violation of Article III, Section 2.
 
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