No Living Constitution

[nbcrusader]

Scalia Dismisses 'Living Constitution'

People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

Constitution - legal document or "living organism"?

 

[Irvine511]

i vote "living organism" -- but i also disagree with the false choice you've set up at the outset.

 

[nbcrusader]

It was the choice proposed by Scalia.

And you voted for one side.

 

[verte76]

It's a living organism.

 

[nbcrusader]

Do you understand what doors you open when you call it a "living organism"?

 

[Irvine511]

Do you understand what doors you open when you call it a "living organism"?

yes.

i'm not surprised Scalia would set up a false choice.

 

[deep]

Supreme Court Justice Antonin Scalia
is probably the worst justice serving.

He is unfit.

And holds bizarre beliefs.

Some of his rants are beyond the pale.

 

[Utoo]

The way the Constitution is written, it has always been interpreted as a "living organism," in that many portions of it are rather vague. Much of the Constitution is quite open to interpretation. If it were not, anybody could simply look to it to determine if something is in line with its principles or not; we wouldn't need constitutional experts, nor a select body (i.e., supreme court) to do it for us---all we'd have to do is look at it and say, "Yep, it says here that this is right and this is wrong."

The fact that much of it must be interpreted means that "personal, political, or religious beliefs" will factor in your interpretation. Even if you truly believe that you see an issue in the same light as the writers of the Consitution originally intended, your own particular persuations will affect what you think was "originally intended." That's why there is almost never a unanimous decision on the Supreme Court. Let's say that even if up to half the justices will outright say they vote based on personal ideals, I still doubt that the other half would entirely agree on what was "originally intended."

I find it funny that a justice who is known to lean extraordinarily to one side or the other can honestly believe that personal beliefs don't affect him at all.



By the way, the "original intent" of the Constitution included the phrase "All men are created equal" as both "All free men" and "All white men."

 

[AliEnvy]

Constitution - legal document or "living organism"?

All legal documents ARE living organisms.
They are subject to change at the will of the people.

 

[nbcrusader]

The way the Constitution is written, it has always been interpreted as a "living organism," in that many portions of it are rather vague. Much of the Constitution is quite open to interpretation. If it were not, anybody could simply look to it to determine if something is in line with its principles or not; we wouldn't need constitutional experts, nor a select body (i.e., supreme court) to do it for us---all we'd have to do is look at it and say, "Yep, it says here that this is right and this is wrong."

The fact that much of it must be interpreted means that "personal, political, or religious beliefs" will factor in your interpretation. Even if you truly believe that you see an issue in the same light as the writers of the Consitution originally intended, your own particular persuations will affect what you think was "originally intended." That's why there is almost never a unanimous decision on the Supreme Court. Let's say that even if up to half the justices will outright say they vote based on personal ideals, I still doubt that the other half would entirely agree on what was "originally intended."

Actually, the Constitution has "not always" been interpreted as a “living organism” – that being a creation of the later part of the 20th century.

Interpretation in our legal system is built upon precedent and original intent – for any law. This is not new nor is it inappropriate for a document such as the Constitution. Original intent is drawn from legislative history – not simply personal persuasions.

The problem with the living organism philosophy is that it only works if the result matches your desired outcome. This can work both ways politically and it is an assault on liberty. The living organism philosophy also opens the door to decisions based on public opinion – adding a politicized dimension to the branch of government that was designed to be free of political influences.

 

[DaveC]

Actually, the Constitution has "not always" been interpreted as a “living organism” – that being a creation of the later part of the 20th century.

Then how come the Framers put in the ability to amend the Constitution in the first place? Why didn't article 1 state that the Constitution of the United States is inviolable and unchangeable?

Because they knew it would HAVE to be changed based on experience with the Articles of Confederation.

 

[Utoo]

Interpretation in our legal system is built upon precedent and original intent – for any law. This is not new nor is it inappropriate for a document such as the Constitution. Original intent is drawn from legislative history – not simply personal persuasions.

.........

The living organism philosophy also opens the door to decisions based on public opinion – adding a politicized dimension to the branch of government that was designed to be free of political influences.

Certainly. However, the fact that one can appoint a "liberal" or a "conservative" judge to the court--that a distinction between "liberal" and "conservative" judges even exists---indicates that the court system is politicized. Moreover, seeing as how both "liberal" and "conservative" judges find a way to base their decisions on precedent, yet often come to differing conclusions, indicates that interpreting what a previous court decision means is still somewhat open to interpretation.

 

[nbcrusader]

Certainly. However, the fact that one can appoint a "liberal" or a "conservative" judge to the court--that a distinction between "liberal" and "conservative" judges even exists---indicates that the court system is politicized. Moreover, seeing as how both "liberal" and "conservative" judges find a way to base their decisions on precedent, yet often come to differing conclusions, indicates that interpreting what a previous court decision means is still somewhat open to interpretation.

Perhaps the "liberal/conservative" distinction is more a political fiction used for nomination hearings. In a recent thread, Justice Bryer indicated that there were no political leanings on the court.

 

[AliEnvy]

The problem with the living organism philosophy is that it only works if the result matches your desired outcome. This can work both ways politically and it is an assault on liberty.

If the result matches the desired outcome of the majority of the people represented, that IS liberty, no?

The living organism philosophy also opens the door to decisions based on public opinion – adding a politicized dimension to the branch of government that was designed to be free of political influences.

If interpreting the law relies in part on precedent, how do you create precedent if not for public opinion?

 

[Utoo]

Perhaps the "liberal/conservative" distinction is more a political fiction used for nomination hearings. In a recent thread, Justice Bryer indicated that there were no political leanings on the court.

Quite possibly. I haven't studied enough judges' decision histories to be able to comment on that. Still, the fact that two or more judges can be given the same case and have all the same precedents and resources at their disposal, yet still be able to come up with different decisions.....that thought still lingers.

 

[nbcrusader]

Many SCOTUS decisions are based on the application of balancing tests. The mixing of facts and law in light of a balancing test will result in differing conclusions.

 

[Utoo]

If the result matches the desired outcome of the majority of the people represented, that IS liberty, no?



If interpreting the law relies in part on precedent, how do you create precedent if not for public opinion?

I'd say that for the first question, it depends on the scale on which you define liberty---for an individual, or for the masses as a whole. That's a tough question & could probably spark quite a lengthy & thoughtful debate!

Also, technically, a precedent is merely a previous court decision, the principles of which can be applied to a subsequent case.

 

[nbcrusader]

If the result matches the desired outcome of the majority of the people represented, that IS liberty, no?

No, a core aspect of liberty is the consistency in which law is applied. If law is applied in an inconsistent fashion, there is a deprivation of liberty.

If interpreting the law relies in part on precedent, how do you create precedent if not for public opinion?

Precendent refers to prior legal decisions utilizing same or similar fact patterns. Public opinion plays no role.

 

[Utoo]

Many SCOTUS decisions are based on the application of balancing tests. The mixing of facts and law in light of a balancing test will result in differing conclusions.

That's often where the personal side comes into play. Factors often used in a balancing test including determining the importance of a fact, the relevance of something, the potential impact of a fact/decision/circumstance, etc. As objective as such intellectual questions may be designed to be, there still is an amount of subjectivity that remains.

 

[AliEnvy]

I'd say that for the first question, it depends on the scale on which you define liberty---for an individual, or for the masses as a whole.

I was speaking about whoever is bound by the law interpreted. nbc may have been speaking to personal liberty?

Also, technically, a precedent is merely a previous court decision, the principles of which can be applied to a subsequent case.

Exactly, so what do you think influences court decisions that are precedent-setting?

 

[Utoo]

No, a core aspect of liberty is the consistency in which law is applied. If law is applied in an inconsistent fashion, there is a deprivation of liberty.

Consistency is more related to justice than liberty...but I'll let you go on that.

 

[nbcrusader]

That's often where the personal side comes into play. Factors often used in a balancing test including determining the importance of a fact, the relevance of something, the potential impact of a fact/decision/circumstance, etc. As objective as such intellectual questions may be designed to be, there still is an amount of subjectivity that remains.

Another factor to consider: decisions are rendered after pursuasive arguments are presented before the Court.

 

[Utoo]

Exactly, so what do you think influences court decisions that are precedent-setting?

Ideally, it's yet more preceding precedents. In reality....well, that's what's up in the air in this thread.

 

[Irvine511]

i wonder if Scalia's understanding of Constitution would ever lead him to an outcome with which he disagreed ...

 

[Utoo]

Another factor to consider: decisions are rendered after pursuasive arguments are presented before the Court.

More "living organism" brought into the application of the Constitution....

 

[Irvine511]

it strikes me that originalism is as much judicial activism as anything else -- screw precedent, you know?

 

[nbcrusader]

More "living organism" brought into the application of the Constitution....

Funny.

More explaination for differing outcomes one a given set of facts.

 

[nbcrusader]

i wonder if Scalia's understanding of Constitution would ever lead him to an outcome with which he disagreed ...

It would almost be a certainty. Many cases deal with the ability of a branch of government to pass a law without addressing the rationality of the specific law.

 

[nbcrusader]

it strikes me that originalism is as much judicial activism as anything else -- screw precedent, you know?

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.

 

[Irvine511]

It would almost be a certainty. Many cases deal with the ability of a branch of government to pass a law without addressing the rationality of the specific law.

well, as pertains to another thread, theoretically ...