No Living Constitution

[Irvine511]

I'd suggest originalism has a stronger tie to precedent than a "living organism" theory as the later suggests open license to change despite precedent.

originalism seems to me to render all precedent both meaningless and useless, since there must logically (by this thought system) be a "true" meaning of each and every law. it also is as much a mantra as anything else to rationalize a political belief.

it also strikes me that seeking out a timeless original itent of the Constitution is tantamount to the creation of a flase God, especially with the two options you've laid out for us -- are we to see the Constitution as inerrent? as having a fixed and definitive meaning? are we to assume that the Constitution, written by many men hundreds of years ago, had an original meaning? how could a diverse group of people such as the founders even have a single intent? if so, can we possibly know what it is 200 years later? and would they have supported originalism?

perhaps things are much more malleable than that, and that the Constitution is designed not to be inerrent or infallable, but that it sought to continuously maximize the pursuit of liberty with an empahsis on coherence and continuity, seeing laws as part of an evolution of society.

let's take the Dread Scott case (which anti-aboritonist love). fidelity to original understandings would logically mean that blacks could not be citizens. this is in line with mainstream thought of slaveholding white landed gentry at the end of the 18th century.

i also suppose i'm comfortable living with a law that is in flux and changing and in constant dialogue, rather than a static set of rules. but my world has always been many shades of grey and discourse between contested meanings. i think that herein lies the genius of the Constitution -- it is written in broad terms, and the consistent interpretation reflects society as it is now, keeping us endlessly dynamic and filled with the potential for constant renewal, rather than what meaning might have been in mind in 1789.

 

[nbcrusader]

perhaps things are much more malleable than that, and that the Constitution is designed not to be inerrent or infallable, but that it sought to continuously maximize the pursuit of liberty with an empahsis on coherence and continuity, seeing laws as part of an evolution of society.

The Constitution is a law like any other. It also has a built-in change mechanism to change with the evolution of society. A mechanism that works and has been used a number of time in our history.

Disregard of the set mechanism to achieve change is the most dangerous afront to precedent we face.

Why the difficulty understanding or grasping original intent? It is a component of every law we adopt - all of which are adopted by government bodies, not individuals.

 

[Irvine511]

:shakesangryfist:

this is very interesting!

but stupid work gets in my way!

i will try to respond, soon, but i cannot gurantee it ...

 

[melon]

Why the difficulty understanding or grasping original intent? It is a component of every law we adopt - all of which are adopted by government bodies, not individuals.

Because the idea of "original intent" is a fallacy. Scalia only cares about a conservative interpretation of the Constitution, which is what makes the idea of "strict constructionism" a loaded and meaningless term. It's meaningless, because the debate over whether the Constitution should be interpreted by paleoconservatives or liberals is as old as Marbury v. Madison (1803). And Thomas Jefferson, one of the Founding Fathers, clearly had a more liberal approach to the Constitution. Why does Scalia think that he trumps a Founding Father?

If Scalia cares about the law, he should now recuse himself from any further gay rights / abortion-related Supreme Court cases, because he has clearly shown that he is prejudiced on those issues, and I find it doubtful that he will be able to look at any of those cases with an open mind. This has nothing to do with his "conservatism"; while you can pretty much guess what Clarence Thomas would vote on any of these cases, he also doesn't parade himself around the country and virtually announce what he plans to vote on certain issues.

But again, it's not about the law. It's not about the Constitution. It's about the paleoconservatives in this country wanting to go back to the "good old days" that only exist in their head. And they've got an activist judge in Scalia.

Melon

 

[nbcrusader]

Because the idea of "original intent" is a fallacy. Scalia only cares about a conservative interpretation of the Constitution, which is what makes the idea of "strict constructionism" a loaded and meaningless term. It's meaningless, because the debate over whether the Constitution should be interpreted by paleoconservatives or liberals is as old as Marbury v. Madison (1803). And Thomas Jefferson, one of the Founding Fathers, clearly had a more liberal approach to the Constitution. Why does Scalia think that he trumps a Founding Father?

If Scalia cares about the law, he should now recuse himself from any further gay rights / abortion-related Supreme Court cases, because he has clearly shown that he is prejudiced on those issues, and I find it doubtful that he will be able to look at any of those cases with an open mind. This has nothing to do with his "conservatism"; while you can pretty much guess what Clarence Thomas would vote on any of these cases, he also doesn't parade himself around the country and virtually announce what he plans to vote on certain issues.

But again, it's not about the law. It's not about the Constitution. It's about the paleoconservatives in this country wanting to go back to the "good old days" that only exist in their head. And they've got an activist judge in Scalia.

Melon

Say what you want (or reframe the argument) about Scalia, but original intent exists for each and every one of the laws on our books. Well annotated statutory collections include detailed explainations of the law maker's intent. And judges often look to the intent of the law makers to help determine the meaning of the law. The Constitution is no different.

 

[Se7en]

well since the bill of rights and other amendments weren't actually part of the original consitution i think we should get rid of those. i mean if the founding fathers weren't interested in universal suffrage or freeing the lazy blacks then why should we be anymore concerned with it than they?

 

[melon]

Say what you want (or reframe the argument) about Scalia, but original intent exists for each and every one of the laws on our books. Well annotated statutory collections include detailed explainations of the law maker's intent. And judges often look to the intent of the law makers to help determine the meaning of the law. The Constitution is no different.

Sure, they look for that "original intent," but guess what? It's a romanticist idea, overall, and that's where you get different interpretations of that "intent" from judges of different ideologies.

After all, considering how our Founding Fathers were all agnostics / unitarians / deists, I don't think it was their "original intent" for religion to have such an active role in the Bush Administration, but if you ask paleocons, you'd think they were all devout fundamentalist Christians (despite the fact that evangelical Christianity in America wasn't common until around 1836). James Madison, writer of the Constitution, was also staunchly opposed to tax exempt statuses for religions. So is it really "original intent" that Scalia is looking for, or is it really trumpeting conservative ideology as if it IS the "original intent"?

Melon

 

[nbcrusader]

Sure, they look for that "original intent," but guess what? It's a romanticist idea, overall, and that's where you get different interpretations of that "intent" from judges of different ideologies.

After all, considering how our Founding Fathers were all agnostics / unitarians / deists, I don't think it was their "original intent" for religion to have such an active role in the Bush Administration, but if you ask paleocons, you'd think they were all devout fundamentalist Christians (despite the fact that evangelical Christianity in America wasn't common until around 1836). James Madison, writer of the Constitution, was also staunchly opposed to tax exempt statuses for religions. So is it really "original intent" that Scalia is looking for, or is it really trumpeting conservative ideology as if it IS the "original intent"?

Melon

An excellent example of a major stumbling block to original intent - the re-writing of history. But in doing so, you've based your argument on a purported original intent, so I'm not sure if you are really dismissing the idea, or just wanting your own version.

Anyway, the issues you touch here regarding religion have been properly addressed in previous threads.

 

[tommyvill]

Well according Law Theories yes, Constitution is certainly a sort of living thing....evolutively interpreted by organism such as the Supreme Court and so on...

 

[Irvine511]

is the absense of an original intent *the* Original Intent?

(i'm coming back, just need to reload ...)

 

[AliEnvy]

Can someone give an example of a legal document that is not a living organism?

Because law is interpreted, bias is inherent no matter what historical or structural checks and balances the system has built to prevent it.

To suggest there is no political component of that bias (which, lo and behold, is influenced by public opinion) makes absolutely no sense...although it may just be more transparent at some times than others, as with the appointment of an openly activist judge.

 

[nbcrusader]

Are you suggesting that all laws are to be interpreted by a "living organism" standard?

The challenge of applying law to specific facts does not automatically demand a living organism standard.

 

[nbcrusader]

is the absense of an original intent *the* Original Intent?

(i'm coming back, just need to reload ...)

Only if we believe the Constitution was sponteneously created. But we have records of debate and history leading to its ratification.

 

[Irvine511]

Only if we believe the Constitution was sponteneously created. But we have records of debate and history leading to its ratification.

er, what?

i'm suggesting, in a somewhat flip way, was that perhaps the original intent of the constitution is that there was no original intent -- that the document was intended to be elastic and able to shift and change and that it has faith not in the document itself, but in the ability of citizens to interpret and understand the document over centuries

 

[nbcrusader]

An interesting theory - but what evidence is there for the "no original intent" intent?

 

[AliEnvy]

Are you suggesting that all laws are to be interpreted by a "living organism" standard?

The challenge of applying law to specific facts does not automatically demand a living organism standard.

Whatever mechanisms you use to apply law, it is interpreted and subject to change.

Call it whatever standard you like, but that is a living organism.

 

[nbcrusader]

Then we are talking about two different things.

Reasonable people can come to differing conclusions regarding a law.

The "living organism" standard says our decisions should be driven by a desired outcome, not how we view established precedent.

 

[AliEnvy]

Nah, we're still talking about the same thing.

I'm saying it doesn't matter what standard you use, the result will still be desired outcome.

If there is an example of where that doesn't hold true, I'd like to hear it.

 

[nbcrusader]

I think you discredit the judicial system if you believe that all decisions are based on the desired outcome. That just isn't the reality.

 

[melon]

I think you discredit the judicial system if you believe that all decisions are based on the desired outcome. That just isn't the reality.

Tell that to the Religious Right and Ann Coulter.

We can play semantical games, ultimately. "Original intent" is always part of the judicial equation; however, justices like Scalia and Ginsberg will likely have completely opposite views of what that "intent" means. Where I take offense is not in Scalia's paleolithic view of the world as much as he thinks that only he has the "correct" interpretation of the Constitution, and liberals, by default, are nothing but "activist judges." On the contrary, I'd say that "liberal judges" have just as much historical credibility as Scalia thinks he has.

He really is a pitiful excuse for a judge. "Impartiality" that we'd expect from the judiciary doesn't even register in his vocabulary, and he should have been impeached a long time ago for all the bigoted comments he's made around the country over the years. Again, I may disagree with an equally conservative judge, Clarence Thomas, but he has about 100x more professionalism than Scalia ever has had.

Melon

 

[AliEnvy]

Do I though?

Reality is that the judicial system exists to serve the citizens bound by it.

And where a law doesn't serve those citizens, it will eventually be changed.

The degree to which you strictly apply precedent will generally only affect the pace of that change.