The US Constitution as a "living" document

[vanagon40]

Because I did not want to hijack Valkorado's thread, I started a new thread on the subject of the Constitution as a "living" document.

I believe the Constitution has to be a living document, as the framers could not possibly have contemplated the application of the Constitution to today's issues. Especially, with regard to the bill of rights.

Freedom of speech: The framers never considered whether this included the right to publish porn on the internet.

Right to bear arms: The framers never considered whether this included the right to own nuclear weapons.

Search and Seizure: The framers never considered whether a warrant would be required to find the identity of a person's facebook account. Or demand a DNA sample.

Right against Self Incrimination: The framers never considered whether forcing an individual to give a DNA sample would be considered self incrimination.

Right of confrontation: The framers never considered whether video camera testimony would satisfy the right to confront the witnesses against the accused. Also remember, until 1963, the right to counsel did not include "simple" prosecutions for "simple" felonies.

So, unless we need a 3/4 majority of the states to address each of these issues, the Supreme Court must interpret the US Constitution as it applies to today's issues. The Supreme Court is an "activist" court mostly when it rules against the way the person thinks it should rule.

[Jess from VA]

I agree with your assessment V.  Of course the Const must be interpreted, consistent with the framer's intent.  That is one of the major duties given the judiciary in our three branch G.  And fairly and properly interpreted, it remains one of the finest documents ever created by men to form  the nucleolus of of a free republic and free people. 

I think the problem is more semantics with the phrase... living document.  Like so many things with the left, it becomes a euphemism for more than proper strict interpretation, consistent with the framer's intent.  A living document does not mean it should be ignored, marginalized, circumvented, or flat out lied about to suit any interest group's goals.  It does not mean we need judges appointed with political agendas, to make crap up either.  This later point is now the greatest threat to all our individual liberties guaranteed us in the Constitution. 

If you don't like it, then try and change it the way it is supposed to be changed (which is very difficult).  But don't piss down my leg and tell me it's raining.

The 2d amendment only refers to the National Guard, not the free citizenry is a good example of pissing down my leg (and lying, and making crap up). 

Yes it is a living document (it certainly is not dead). 

[Serk]

Miss him already...

[Robert]

I think what is most telling is that the unbiased judges now cannot decide a case since the decisions are usually split down the middle, ending in the court being hung. Essentially this means we have no control of the people who decide policy issues in the US and they are biased. We have a dictatorship essentially if any decision goes to the Supreme Court in that they decide not on rule of law but personal feelings.

[Pete]

Is your contract to buy your home a living document? No it is a contract so is the Constitution.
Either can be changed by agreement and/or by procedures.

But neither can be changed by just redefining the words or phrases.

Example free speech. Yes you can yell fire in a crowd, but if you are wrong or do it to incite panic you are to be held responsible.

[The emperor has no clothes]

Is your contract to buy your home a living document? No it is a contract so is the Constitution.
Either can be changed by agreement and/or by procedures.

But neither can be changed by just redefining the words or phrases.

Example free speech. Yes you can yell fire in a crowd, but if you are wrong or do it to incite panic you are to be held responsible.

If that were the case, wouldn't the right to bear arms only apply to musket fired weapons ?

[solo1]

No!  If you would read The Federalist #46, you would know the meaning of the 2nd.  It is the Right to bear ARMS (not just muskets or rifles )for a specific purpose.  Hamilton was no dummy.

For your information muskets were smoothbores like the Brown Bess, rifles were rifled like a Kentucky long rifle.

[The emperor has no clothes]

No!  If you would read The Federalist #46, you would know the meaning of the 2nd.  It is the Right to bear ARMS (not just muskets or rifles )for a specific purpose.  Hamilton was no dummy.

For your information muskets were smoothbores like the Brown Bess, rifles were rifled like a Kentucky long rifle.

Wayne, I'm aware of that. But Pete is saying there should be strict interpretation on the document. (At least if I understand him correctly)

[solo1]

Still wouldn't change anything.  The emphasis of the 2nd is on Rights, not objects, IMO.

[Pete]

Wayne, I'm aware of that. But Pete is saying there should be strict interpretation on the document. (At least if I understand him correctly)

You did not misunderstand you deliberately tried to interject and mislead. Good luck with that.

[The emperor has no clothes]

Wayne, I'm aware of that. But Pete is saying there should be strict interpretation on the document. (At least if I understand him correctly)

You did not misunderstand you deliberately tried to interject and mislead. Good luck with that.

"But neither can be changed by just redefining the words or phrases"
The word "arms" was defined by the weapons of the time. They had no way of anticipating nuclear, chemical, biological weapons. The Constitution has to be interpreted. That's part of why we have Supreme Court Justices. Surely you are not advocating citizens be allowed ownership of nuclear, chemical, biological weapons ?

[solo1]

Pete, I agree the Constitution is NOT a living document.

Now if we could get all nine members (eight for now) of SCOTUS to agree, it would be fine.  Right now, four would believe that it is.

Maybe Meathead is looking at the history of the SCOTUS.

 

[The emperor has no clothes]

I agree with your assessment V.  Of course the Const must be interpreted, consistent with the framer's intent.  That is one of the major duties given the judiciary in our three branch G.  And fairly and properly interpreted, it remains one of the finest documents ever created by men to form  the nucleolus of of a free republic and free people. 

I think the problem is more semantics with the phrase... living document.  Like so many things with the left, it becomes a euphemism for more than proper strict interpretation, consistent with the framer's intent.  A living document does not mean it should be ignored, marginalized, circumvented, or flat out lied about to suit any interest group's goals.  It does not mean we need judges appointed with political agendas, to make crap up either.  This later point is now the greatest threat to all our individual liberties guaranteed us in the Constitution. 

If you don't like it, then try and change it the way it is supposed to be changed (which is very difficult).  But don't piss down my leg and tell me it's raining.

The 2d amendment only refers to the National Guard, not the free citizenry is a good example of pissing down my leg (and lying, and making crap up). 

Yes it is a living document (it certainly is not dead). 

I will yield to our esteemed Attorney on the subject. 

[solo1]

By the same token, what about the First Amendment?  How could they foresee TV, radio, internet, facebook, tweet, and a myriad of other means to express oneself?  we came a long way from turkey quill and ink, in person speeches, etc.

How would we clamp down on 'free 'speech, what rules must be made and who would make them.?

Why does the First Amendment exist?  

Arguments like this go nowhere.  I give up.

[CajunRider]

Absolutely NOT a living document.  

That is the reason for Amendments.  

You want to change the constitution because of the difference in technology today???  Create a new amendment.

[Valkorado]

The word "arms" was defined by the weapons of the time.

They could have used the word musket exclusively.  Thank God they didn't!  They knew exactly what they were saying.

[The emperor has no clothes]

By the same token, what about the First Amendment?  How could they foresee TV, radio, internet, facebook, tweet, and a myriad of other means to express oneself?  we came a long way from turkey quill and ink, in person speeches, etc.

How would we clamp down on 'free 'speech, what rules must be made and who would make them.?

Why does the First Amendment exist?  

Arguments like this go nowhere.  I give up.

Wayne, I think you are making my point. They couldn't have foreseen TV, Radio, etc. Thats why they have to interpret the intent of the document.

[solo1]

Not exactly.  If present day justices want to know the intent of the 2nd amendment, for example, it is there for all to see in the 46th Federalist papers.  The Federalist is a collection of authenticated  written expressions by the founders of WHY the words were chosen for the Constitution and the Amendments.

These expressions are ignored because they are a direct threat to power of those that are in power AND those are the ones who pick the justices to 'interpret'  the Constitution as they see fit.

The Constitution is NOT a living document, and was not intended to be,  but it is being treated as such for the above reasons.

I might be in way over my head but I really believe what I post here.

[The emperor has no clothes]

Not exactly.  If present day justices want to know the intent of the 2nd amendment, for example, it is there for all to see in the 46th Federalist papers.  The Federalist is a collection of authenticated  written expressions by the founders of WHY the words were chosen for the Constitution and the Amendments.

These expressions are ignored because they are a direct threat to power of those that are in power AND those are the ones who pick the justices to 'interpret'  the Constitution as they see fit.

The Constitution is NOT a living document, and was not intended to be,  but it is being treated as such for the above reasons.

I might be in way over my head but I really believe what I post here.

I know you do  As do I. We've had 2 of or resident lawyers weigh in on this. Where's our third ? Oss ? Calling Oss. 

[sleepngbear]

Wayne, I'm aware of that. But Pete is saying there should be strict interpretation on the document. (At least if I understand him correctly)

You did not misunderstand you deliberately tried to interject and mislead. Good luck with that.

"But neither can be changed by just redefining the words or phrases"
The word "arms" was defined by the weapons of the time. They had no way of anticipating nuclear, chemical, biological weapons. The Constitution has to be interpreted. That's part of why we have Supreme Court Justices. Surely you are not advocating citizens be allowed ownership of nuclear, chemical, biological weapons ?

Now you're nitpicking crap that isn't even written anywhere just to argue. Give it a rest already.

[The emperor has no clothes]

Wayne, I'm aware of that. But Pete is saying there should be strict interpretation on the document. (At least if I understand him correctly)

You did not misunderstand you deliberately tried to interject and mislead. Good luck with that.

"But neither can be changed by just redefining the words or phrases"
The word "arms" was defined by the weapons of the time. They had no way of anticipating nuclear, chemical, biological weapons. The Constitution has to be interpreted. That's part of why we have Supreme Court Justices. Surely you are not advocating citizens be allowed ownership of nuclear, chemical, biological weapons ?

Now you're nitpicking crap that isn't even written anywhere just to argue. Give it a rest already.

Thats the freaking point dude ! Not everything can be wrote down in the Constitution .

[sleepngbear]

Thats the freaking point dude ! Not everything can be wrote down in the Constitution .

There's a difference between interpretation of what's there and making crap up. Dude.

[The emperor has no clothes]

Thats the freaking point dude ! Not everything can be wrote down in the Constitution .

There's a difference between interpretation of what's there and making crap up. Dude.

And who said anything about making stuff up ?

[Pete]

Come on folks.
The 2nd is not a grant of arms freedom, it is a restriction on government.
The right to arms pre-existed the Constitution.

The government has NO right to control arms - period - no exceptions.

No lawyers needed if one can read and understand plain english. 

[Bighead]

Is your contract to buy your home a living document? No it is a contract so is the Constitution.
Either can be changed by agreement and/or by procedures.

But neither can be changed by just redefining the words or phrases.

Example free speech. Yes you can yell fire in a crowd, but if you are wrong or do it to incite panic you are to be held responsible.

If that were the case, wouldn't the right to bear arms only apply to musket fired weapons ?

Arms could be any weapon couldn't it? A knife a gun a stick? If you are carrying it for protection it is considered arms No?

[Gavin_Sons]

Some people need to be banned from the USA. Living document my ass. Those guys that created the constitution were much smarter than any of us and knew what they were doing. They knew where technology would be in 200 years. Arguing this point just proves your a shitty american.

[MP]

Is your contract to buy your home a living document? No it is a contract so is the Constitution.
Either can be changed by agreement and/or by procedures.

But neither can be changed by just redefining the words or phrases.

Example free speech. Yes you can yell fire in a crowd, but if you are wrong or do it to incite panic you are to be held responsible.

If that were the case, wouldn't the right to bear arms only apply to musket fired weapons ?

No.  ARMS is NOT just muskets.

Does free speech apply to radio, tv, phone, internet, etc?  They were not around at the time written either.

Generally, when "living Constitution" is referenced, it means CHANGING it to fit the times, as seen by those who want to change it.  Adapting to changing times, WITHOUT changing the original intent, is NOT "living".

[Moonshot_1]

As I understand it.

The Constitution serves two purposes. It:
1. Defines the Government
2. Limits the Government

It does not grant Rights.
We have Rights. Endowed by our Creator as was Declared.

We choose to secede specific rights to the Government. And we do so at our peril.

We secede these specific rights to the Government via Legislation.

This Legislation is then, when challenged, is determined to be within the Government's purview as it is defined, or not within the Government's purview if the Constitution prohibits it. 

The Judicial branch does not and cannot make law. It cannot interpret the Constitution in such a manner as to create de-facto legislation. There is no remedy for such action except perhaps impeachment. I would consider such action to border on Treason.

If a social change is needed it must be done through legislation or Constitutional amendment.
It is a slow and arduous process and it is supposed to be. Such things deserve great thought and time for reason.

[The emperor has no clothes]

Some people need to be banned from the USA. Living document my ass. Those guys that created the constitution were much smarter than any of us and knew what they were doing. They knew where technology would be in 200 years. Arguing this point just proves your a shitty american.

They knew where technology would be in 200 years ? Right 

[Bighead]

Meathead do you ever do anything other than stick the oar In The proverbial tub of crap and stir?

[The emperor has no clothes]

Meathead do you ever do anything other than stick the oar In The proverbial tub of crap and stir?

Are you saying Gavin's comment is a proverbial tub of crap ?

[Bighead]

Meathead do you ever do anything other than stick the oar In The proverbial tub of crap and stir?

Are you saying Gavin's comment is a proverbial tub of crap ?

Point proven.
Not saying Gavin right Or wrong but all you do is stir nothing else just stir. I hope you don't stir that into the meat you cut up.

[The emperor has no clothes]

Meathead do you ever do anything other than stick the oar In The proverbial tub of crap and stir?

Are you saying Gavin's comment is a proverbial tub of crap ?

Point proven.
Not saying Gavin right Or wrong but all you do is stir nothing else just stir. I hope you don't stir that into the meat you cut up.

Come on by, I'll hook you up with some Ground Beef. 

[Bighead]

No thanks I don't eat red meat

[solo1]

In my lowly view, the Executive branch of the Federal government has effectively been making law, the Judicial branch is hanging by a thread (4/4), while the Legislative branch is doing nothing.

The checks and balances which our founders wisely created, are not working. In addition, the dishonesty and corruption is beyond words.

Who's at fault?  Hopefully, informed citizens will make the right decision in November.

[Valkorado]

[MP]

In my lowly view, the Executive branch of the Federal government has effectively been making law, the Judicial branch is hanging by a thread (4/4), while the Legislative branch is doing nothing.

The checks and balances which our founders wisely created, are not working. In addition, the dishonesty and corruption is beyond words.

Who's at fault?  Hopefully, informed citizens will make the right decision in November.

Agreed, every year, the President has been taking more and more power.

Example.  Obama said MANY times, he had NO AUTHORITY to act on Immigration, because of the Constitution.

Congress considered changing the law, but voted NOT TO.

So, Obama SUDDENLY FOUND a Constitutional right for him to unilaterally implement what he wanted, Dreamer Ex. Order.

EX Orders are ONLY to be used in the absence of Congressional action.  Congress HAD acted.  There was a law in place.  They debated, and  voted NOT to change the law.

So, Obama just changed it on his own!

Year after year, President after President, the WH is becoming more and more dictatorial.  

The President just decides to do something unconstitutional.  The Congress passes a bill overriding that, but the President vetoes it. Now, it takes the Court to override the President, and it seems more and more that the Court is willing to give those powers to the President,  any President.

This is happening under both Parties.

[Oss]

Careful what you wish for Meathead  

The Constitution, to me, is a Contract made by We The People after we screwed up with the 1st Continental Congress

As Wayne so correctly stated without reading the Federalist Papers (which actually mostly make the argument for a stronger central government to more easily and properly provide economies of scale for trade and defense) I  do believe one can not arrive independently at the place those great folks were at in their discussions in the late 1700's.   Once read (ok I have read most more than once and the constitution sits on my desk so it gets read often) its easier to understand their fear of too limited a government and the fear of monarchy

The framers of course did not forsee the future inventions indeed most would seem like magic were they alive today,  for instance people seemingly talking to themselves while walking down the street in Boston having a conversation with a son in England for instance, or flying, or contact lenses for just a few examples.

The 2nd Amendment
"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."
 recognizes several diverse things all in one incredible sentence:
1  the people may be subject to be the militia
2  the people are responsible (a great word) for our security which includes defense of home and state
3  the inherent concept that all the people are responsible to each other
4 that each colony was in effect a State, with borders and problems with foreign and native neighbors and sovereign in their own ways
5 the most obvious to me " arms  "  is any and all weapons and ammunition of any kind without limitation. So yes,subject to local zoning if you want a pt boat or a tank in your back yard I dont have a problem with it.  I do think you should have a license to drive it however which should not be infringed to make it impossible for the average joe or jane  Likewise if you have a water cooled machine gun on your christmas list go for it but again that is just my opinion

Oss's view is any government is not the people it is a living thing that can be killed and may one day need to be killed, neutered or changed to suit the people subject to it Anything living can be killed.

Unfortunately or fortunately the Constitution like all contracts are created by living beings and  can and will be interpreted by men and women in black robes in Washington DC and elsewhere and capable of amendment and repeal (like prohibition for instance)

Read up on the 1st incarnation of our government BEFORE the constitution and how we almost did not make it  You may find sleeping comes more easily.

See ya Friday

[Pete]

As I understand it.

The Constitution serves two purposes. It:
1. Defines the Government
2. Limits the Government

It does not grant Rights.
We have Rights. Endowed by our Creator as was Declared.

We choose to secede specific rights to the Government. And we do so at our peril.

We secede these specific rights to the Government via Legislation.

This Legislation is then, when challenged, is determined to be within the Government's purview as it is defined, or not within the Government's purview if the Constitution prohibits it. 

The Judicial branch does not and cannot make law. It cannot interpret the Constitution in such a manner as to create de-facto legislation. There is no remedy for such action except perhaps impeachment. I would consider such action to border on Treason.

If a social change is needed it must be done through legislation or Constitutional amendment.
It is a slow and arduous process and it is supposed to be. Such things deserve great thought and time for reason.

Excellent statement, well done.

[Gavin_Sons]

Some people need to be banned from the USA. Living document my ass. Those guys that created the constitution were much smarter than any of us and knew what they were doing. They knew where technology would be in 200 years. Arguing this point just proves your a shitty american.

They knew where technology would be in 200 years ? Right 

  you argue this crap and have nothing to stand on. Yes they probably didn't know exactly where technology would be, but was smart enough to know it would be much further ahead than it was when they wrote the constitution.  So yes in a sense they knew where it would be in 200 years.