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Constitution question


NolaAuTiger

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Are the meanings of the provisions of the Constitution fixed - should the Constitution be applied as written?

OR, does the meaning of the Constitution change over time - is it “clay” that is to be shaped by the judges who are applying it?

OR, is the answer somewhere in the middle?

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4 minutes ago, NolaAuTiger said:

Are the meanings of the provisions of the Constitution fixed - should the Constitution be applied as written?

OR, does the meaning of the Constitution change over time - is it “clay” that is to be shaped by the judges who are applying it?

OR, is the answer somewhere in the middle?

IMO, the Constitution is law.  Judges are supposed to enforce the laws.  Judges are not supposed to change or make laws to fit the application. 

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6 minutes ago, around4ever said:

IMO, the Constitution is law.  Judges are supposed to enforce the laws.  Judges are not supposed to change or make laws to fit the application. 

I share the same opinion. I think that there is no greater safety net to democracy than the judiciary, while also no greater threat to democracy than the judiciary when a judge strays from written text. For that reason, I oppose assertions that the Constitution is a “living document.”

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The framers of the Constitution wrote changeability into it. 

They clearly recognized that they were men, not gods, and so both fallible and correctable. 

Judges don't have the power to change the Constitution. That's part of the design.

So, the correct answer, given the options stated in the OP, is 'somewhere in between'.

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36 minutes ago, AUbritt said:

The framers of the Constitution wrote changeability into it. 

They clearly recognized that they were men, not gods, and so both fallible and correctable. 

Judges don't have the power to change the Constitution. That's part of the design.

So, the correct answer, given the options stated in the OP, is 'somewhere in between'.

Pretty much this.  The Constitution is fine, but when issuing rulings, it's imperative that judges also apply modern day standards.  The world that the framers lived in and wrote the Constitution for is vastly different from the one we live in now.  Remember, at the point the Constitution was written, trains weren't even a thing.  That's a lot of innovation and progress to consider.  It's why I find parts of the 2nd Amendment so laughable and why the 1st Amendment has to constantly be redefined, as different mediums pop up for avenues of communication.

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55 minutes ago, Brad_ATX said:

Pretty much this.  The Constitution is fine, but when issuing rulings, it's imperative that judges also apply modern day standards.  The world that the framers lived in and wrote the Constitution for is vastly different from the one we live in now.  Remember, at the point the Constitution was written, trains weren't even a thing.  That's a lot of innovation and progress to consider.  It's why I find parts of the 2nd Amendment so laughable and why the 1st Amendment has to constantly be redefined, as different mediums pop up for avenues of communication.

But isn't the amendment process the way to achieve that evolution? 

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1 hour ago, AUbritt said:

The framers of the Constitution wrote changeability into it. 

They clearly recognized that they were men, not gods, and so both fallible and correctable. 

Judges don't have the power to change the Constitution. That's part of the design.

So, the correct answer, given the options stated in the OP, is 'somewhere in between'.

I am being somewhat lazy and not looking it up for myself, so if you don't mind, how/where do you derive that the framers of the constitution wrote changeability into it? The amendment process as BB states earlier?

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19 minutes ago, bigbird said:

But isn't the amendment process the way to achieve that evolution? 

I don't think so because the amendment process is too slow when compared with the with the fast evolution of our world.  If we parceled the Constitution down to every little detail, we'd end up with something looking like the State of Alabama Constitution, which I can assure you no one wants on a national level.  That thing is longer than War and Peace.

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11 hours ago, AUbritt said:

The framers of the Constitution wrote changeability into it. 

They clearly recognized that they were men, not gods, and so both fallible and correctable. 

Judges don't have the power to change the Constitution. That's part of the design.

So, the correct answer, given the options stated in the OP, is 'somewhere in between'.

What do you mean by changeability? 

I would agree that it embraces future innovation.

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11 hours ago, Brad_ATX said:

Pretty much this.  The Constitution is fine, but when issuing rulings, it's imperative that judges also apply modern day standards.  The world that the framers lived in and wrote the Constitution for is vastly different from the one we live in now.  Remember, at the point the Constitution was written, trains weren't even a thing.  That's a lot of innovation and progress to consider.  It's why I find parts of the 2nd Amendment so laughable and why the 1st Amendment has to constantly be redefined, as different mediums pop up for avenues of communication.

I would say that the even though the Constitution was written in a different day and age, it was framed in such a way as to encapsulate future times. I think that feeds into why the debates were sealed for so many years. 

I think I understand your underlying “concerns” if you will, but I think the amendment process is the proper remedy. Perhaps we would disagree on the remedy, and that’s fine. Many reputable justices through the ages would agree with you - Breyer being one

 

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23 hours ago, Brad_ATX said:

I don't think so because the amendment process is too slow when compared with the with the fast evolution of our world.  If we parceled the Constitution down to every little detail, we'd end up with something looking like the State of Alabama Constitution, which I can assure you no one wants on a national level.  That thing is longer than War and Peace.

It should be slow and deliberate. I believe that is by design the framers. It should be hard to change. This is the law of the land and should not be subject to quick changes due to the "fast evolution of our world" .

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On 7/16/2018 at 9:17 AM, Brad_ATX said:

Pretty much this.  The Constitution is fine, but when issuing rulings, it's imperative that judges also apply modern day standards.  The world that the framers lived in and wrote the Constitution for is vastly different from the one we live in now.  Remember, at the point the Constitution was written, trains weren't even a thing.  That's a lot of innovation and progress to consider.  It's why I find parts of the 2nd Amendment so laughable and why the 1st Amendment has to constantly be redefined, as different mediums pop up for avenues of communication.

Agree. 

Not sure if they would address something like net neutrality were the Constitution rewritten today, for example, but I think they'd at least talk about it. And I'm confident that 2A would be worded differently if the same guys hitched a ride to 2018 with Bill and Ted and saw what the result has been. I think that there would still be a right to bear arms, but there might be some qualifications and clarifications on why that right is given. (The definition of "milita", for example, seems to have been redefined by some 2A zealots.) 

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On ‎7‎/‎16‎/‎2018 at 8:35 AM, AUbritt said:

The framers of the Constitution wrote changeability into it. 

They clearly recognized that they were men, not gods, and so both fallible and correctable. 

Judges don't have the power to change the Constitution. That's part of the design.

So, the correct answer, given the options stated in the OP, is 'somewhere in between'.

There is a process for amending the Constitution, if necessary.  As a matter of principle, I am against 'legislating from the bench'.

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12 minutes ago, McLoofus said:

Agree. 

Not sure if they would address something like net neutrality were the Constitution rewritten today, for example, but I think they'd at least talk about it. And I'm confident that 2A would be worded differently if the same guys hitched a ride to 2018 with Bill and Ted and saw what the result has been. I think that there would still be a right to bear arms, but there might be some qualifications and clarifications on why that right is given. (The definition of "milita", for example, seems to have been redefined by some 2A zealots.) 

While I agree if the founders had gone with Bill and Ted they would worded some things different about the 2A, it is not what you would think. After seeing the crime and how society has declined compared to their day, IMO the founders would have written stronger language and required all law abiding citizens to be armed to protect themselves.

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1 hour ago, 80Tiger said:

It should be slow and deliberate. I believe that is by design the framers. It should be hard to change. This is the law of the land and should not be subject to quick changes due to the "fast evolution of our world" .

There really hasn't been fast change in our history when it comes to law.  It's pretty much always been incremental, which is a good thing.  Mind you, I'm not advocating for a new Constitution or anything.  But if you look at things like interpretation of the First Amendment, there's a lot of gray area.  We, as a country, do not hold an absolutist view on that as codified by law and prior court decisions, which is why I don't hold an originalist view on the Constitution.  And quite frankly, the idea that adding/subtracting amendments is the only way to rectify something is a fools errand, particularly given the hyper-partisan times we live in.

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1 minute ago, Brad_ATX said:

There really hasn't been fast change in our history when it comes to law.  It's pretty much always been incremental, which is a good thing.  Mind you, I'm not advocating for a new Constitution or anything.  But if you look at things like interpretation of the First Amendment, there's a lot of gray area.  We, as a country, do not hold an absolutist view on that as codified by law and prior court decisions, which is why I don't hold an originalist view on the Constitution.  And quite frankly, the idea that adding/subtracting amendments is the only way to rectify something is a fools errand, particularly given the hyper-partisan times we live in.

Why I agree we live in hyper-partisan times, that is exactly why the amendment process is the proper way to change the constitution. I believe that the framers saw through their own experiences of different opinion, that change should not be subject to thin majorities or flavor of the day politics. That it should come through thought and debate resulting in super majorities through the legislative process or constitution conventions.

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23 minutes ago, 80Tiger said:

While I agree if the founders had gone with Bill and Ted they would worded some things different about the 2A, it is not what you would think. After seeing the crime and how society has declined compared to their day, IMO the founders would have written stronger language and required all law abiding citizens to be armed to protect themselves.

Or they would have considered what led to the crime and "decline of society"- I would argue that the opposite has occurred given that women can now vote, slavery has been abolished, children can no longer be forced into labor, etc, but the decline of the middle class will eventually push it the other way- and think about what they might do to prevent it. 

More guns will not make people not poor, it will not educate them, it will not care for their physical and mental health and it will not secure healthy, two-parent (of any sex) households for them. An absence of guns in no way promotes violence. Proliferation of guns, however, certainly makes crime much *more* violent. 

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51 minutes ago, McLoofus said:

Agree. 

Not sure if they would address something like net neutrality were the Constitution rewritten today, for example, but I think they'd at least talk about it. And I'm confident that 2A would be worded differently if the same guys hitched a ride to 2018 with Bill and Ted and saw what the result has been. I think that there would still be a right to bear arms, but there might be some qualifications and clarifications on why that right is given. (The definition of "milita", for example, seems to have been redefined by some 2A zealots.) 

The “right” under the second amendment wasn’t spawned with the drafting of the Constitution. It was an already existing right, at least if the wording of the text and federalist papers mean anything.

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17 minutes ago, 80Tiger said:

Why I agree we live in hyper-partisan times, that is exactly why the amendment process is the proper way to change the constitution. I believe that the framers saw through their own experiences of different opinion, that change should not be subject to thin majorities or flavor of the day politics. That it should come through thought and debate resulting in super majorities through the legislative process or constitution conventions.

So again, I'm not now and have not at any point here advocated for changing the constitution.  I believe that the document is one to be interpreted through a modern lens, not a literal document that is absolute.

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5 minutes ago, Brad_ATX said:

So again, I'm not now and have not at any point here advocated for changing the constitution.  I believe that the document is one to be interpreted through a modern lens, not a literal document that is absolute.

Just FYI - The orginalist is not a strict constructionist (“Literalist”). 

For example, a literalist would have to maintain that the First Amendment doesn’t protect words on parchment paper becuase such is not speech and it’s not press.

Whereas the originalist would maintain that the first amendment protects “expression.” 

Also, I “literally” cannot name a literalist judge. I’m not sure there’s ever been one.

I know this is purely technical. Just throwing it out there. 

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1 hour ago, NolaAuTiger said:

Just FYI - The orginalist is not a strict constructionist (“Literalist”). 

For example, a literalist would have to maintain that the First Amendment doesn’t protect words on parchment paper becuase such is not speech and it’s not press.

Whereas the originalist would maintain that the first amendment protects “expression.” 

Also, I “literally” cannot name a literalist judge. I’m not sure there’s ever been one.

I know this is purely technical. Just throwing it out there. 

What is the difference between an originalist and a textualist?  I've heard Antonin Scalia referred to as a textualist.

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31 minutes ago, triangletiger said:

What is the difference between an originalist and a textualist?  I've heard Antonin Scalia referred to as a textualist.

The terms are often used interchangeably. I never really distinguish between the two. I wrote a paper on textualism and treated it as an interpretive methodology.

But to answer your question, I would say that textualism is method of statutory construction, while originalism is a theory of statutory interpretation. In other words, the originalist exercises textualism when they encounter a statute. 

Strictly speaking, a literalist would also be considered an originalist. 

You pose a complex question that requires more than I can offer on here. Seriously, it’s very comprehensive. Legal scholars write on it often.

 

 

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1 hour ago, Brad_ATX said:

So again, I'm not now and have not at any point here advocated for changing the constitution.  I believe that the document is one to be interpreted through a modern lens, not a literal document that is absolute.

Not trying to put words in your mouth but I guess our difference then, is that while you believe that modern day interpretation of the constitution is how the document should be "used". I on the other hand, consider many of those type interpretations to be "changing" the constitution and should be done through the amendment process.

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1 hour ago, 80Tiger said:

Not trying to put words in your mouth but I guess our difference then, is that while you believe that modern day interpretation of the constitution is how the document should be "used". I on the other hand, consider many of those type interpretations to be "changing" the constitution and should be done through the amendment process.

The problem I see with this is that every time a case comes up that requires nuance, you'll need to pass an amendment.  Unfortunately much of our constitution isn't cut and dry and does require interpretation.  Our laws and judge's interpretations of them are what keep the constitution from being 20 miles long.

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