Is the Consitution a "living" document?
March 14, 2001 7:35 AM   Subscribe

Is the Consitution a "living" document? Following "Scary" Scalia's arguments, the Dread Scott decision was a wise and appropriate one, right?
posted by darren (20 comments total)
Scalia's habit of citing the 1st amendment or ignoring it to suit a given decision rules him out as an authority on this matter. IMHO, of course.
posted by gimli at 7:55 AM on March 14, 2001

Setting aside his political views, which don't usually coincide with mine, I believe Justice Scalia is fundamentally correct in his assessment of the appropriate way to "use" the Constitution. It has very specific language; it's origins are widely known. It's also how the Constitution has alwayds been viewed; only in the last 35 or 40 years has interpretation based on social pressures become the norm. Outside of blindly posturing, I just don't see how anyone could, for instance, read the language of the 2nd Amendment and the writings that support it (to choose a contemporaneously contentious example...) and come to the conclusion that any federal law restricting ownership of firearms could possibly hold up.

Justice Scalia's interpretation of the Constitution is a very, very strict one - but he does remind all of us of our right and responsibility to amend the Constitution when we feel it's of lasting importance to do so. The framers - perhaps deliberately, huh? - made it difficult to make amendments, which on the whole is probably a good thing.
posted by m.polo at 8:24 AM on March 14, 2001

Scalia is an intelligent man, perhaps one of the most intelligent justices appointed over the last century, even if he is a constructionist wack-job. Here he does have a point: Congress is for making laws, the courts are for interpreting them, and it would be better overall if that distinction were retained. There's a point, though, where the court does become the last resort for democracy: Brown v. Board of Education, to cite an example from his litany. Some things are just basically wrong and need fixing, and frequently the wheels of politics are stuck in the mud. To my eye, Brown is an example of interpreting existing Constitutional law. And that's where the rub is.

polo, note that he's not talking only about amendments, but about instances where legislation is the appropriate avenue.

And there's plenty of room for federal gun laws under the 2nd amendment: who are "the people"? what is "keep and bear arms"? what is "infringed"? (But the other thread is more appropriate for that argument.)
posted by dhartung at 8:43 AM on March 14, 2001

I think that Scalia has a consistent and principled view of the First Amendment, and one that almost certainly would parallel the understanding and intention of the Framers, namely, that it should foster broad political, intellectual, religious, and commercial discourse without fear of government restraint, but that it is not to be used as a tool of government-enforced secularization of society, nor as shield for pornographers or other violators of community standards of decency.

I also think it is very difficult for a non-lawyer to appreciate the intellectual violence that the Brennan-led courts of the late 1950's, 1960's, and 1970's committed upon the Constitution with their "living Constitution" doctrine-of-convenience.

Although I, and many, if not most, Americans in 2001, agree with the political outcomes of these decisions, to go back and read them is to recognize a nearly-complete derrogation of every important tradition of judicial reasoning.

The Constitution (a) set forth broad standards and (b) clearly enunciated in the 9th and 10th amendments that where those broad standards did not clearly reach, the people and the individual states were free to act as they saw fit and in the public interest.

The major "civil rights" decisions of the 19th century, from Dred Scott to Plessy were plainly erroneous interpretations of the Constitution, and were properly reversed by later courts in the 1950's and 1960's. However, those same correcting courts proceded to overreach as badly as their 19th century forebears in the redistricting portions of Baker, Miranda, the death penalty cases, and Roe, just to name a few.

If Scalia ever errs to the extreme, I think he can be completely understood (if not wholly excused) because of the precarious state in which the Brennan courts left Constitutional jurisprudence by the early 1980's.
posted by MattD at 8:58 AM on March 14, 2001

dhartung: You're missing something here. What did Brown v. Board effectively overturn? A previous Supreme Court decision called Plessy v. Ferguson, which would appear to have been Unconstitutional on its face in the first place. Plessy was handed down at a time when almost no elites, in any part of the country, were going to question whether the court was going overboard. Anyway, always love it when people say, "If the Supreme Court hadn't been there, as with Brown v. Board, where would we be?" The Supremes came back to it because of a horrible mistake a previous edition of the Supremes had made. The institution had in large part helped create, or at least lend legitimacy to, Jim Crow.
posted by raysmj at 9:04 AM on March 14, 2001

The Constitution's neither dead nor alive, it's a text: interpretations live on and proliferate like bacteria. Now it'd be good if the judiciary did a basic course in hermeneutics, but I don't see that happening. (We can also talk about the intentional fallacy, too, that bastion of 1950s New Criticism.)

dhartung: another reading's possible of Number Two. You could call it an "appositional subjunctive", and it's not that uncommon in 18th-prose. Stick a "While" in front of it, and you get close to that sense.
posted by holgate at 9:28 AM on March 14, 2001

(feck. 18th-c prose.)
posted by holgate at 9:29 AM on March 14, 2001

This got me thinking: Why is the constitution so important and relevant today anyway. Did the pool of wisdom dry up back in the 1700s? That's not to say that it doesn't have some good stuff in it that should be a part of any government, but follow me here... Isn't it like The Ten Commandments or any other religious dogma? Good laws, perhaps, but are they relevant today as they were written back then?

Furthermore, while the framer's misanthropy went a long way to avoiding a "Consitution of the Day", does the difficulty of the amendment process illustrate just a bit of vanity & pretentiousness on the part of the founding fathers?

It's well known that the framers of the constitution did what they did as a reaction to the times in which they lived. We live in a completely different world today. They were a small band of "deserters" (in the eyes of a King across the ocean anyway) trying to make what they considered a better government. They did a pretty good job, but did they do it completely right? We've learned a few things in the last 200+ years. Perhaps there were mistakes made?

I suppose it's just interesting to think about how we, every single day, accept the constitution, our country (as political entity), and our entire political system as "what is and what always will be". If things were different, how would they be?

[I'm afraid I did not adequately explain what was in my head with this post, but hopefully someone gets what I'm straining to hit on.]
posted by fooljay at 1:32 PM on March 14, 2001

You get "unacceptable consequences," and pretty quickly, too, when you stick to the framers' original intent. For example, it's absolutely clear that the clause of the First Amendment prohibiting the "establishment of religion" was intended to prohibit only a national church, such as existed in England with the Church of England, which was the official church, supported by national taxes.

The First Amendment did not prohibit states from establishing official churches, supported by state taxes. The states did so enthusiastically, with the last one disappearing only around 1860. Construing such state laws, one court found that a Jew's bequest to found a school to train rabbis was illegal. However, the court reasoned, his intent was clearly to benefit religion, and so the bequest would be left to the only legal recipient, the state church.

Suppose the legislature of Utah, citing original intent, were to declare that the Mormon Church was the official state churgh of Utah. Marriages could be performed only Mormon clergymen, and the state would not recognize non-Mormon marriages, even if performed outside Utah. Every Utah citizen must give 10% of all income to the Mormon Church. To the extent that any citizen did not do so, the state of Utah would collect it by taxation, and the citizen would be subject to criminal penalties. It would be a crime to criticize the Mormon Church or question the authority of any Mormon clergyman. Etc., etc.

I suppose even Justice Scalia would balk, yet nothing is clearer than that this was the original intent of the First Amendment.

There are hundreds of similar examples. Chief Justice John Marshall put the lie to the "original intent" argument 200 years ago, saying "We must never forget that it is a Constitution that we are expounding."

Scalia's position is dangerous bunk. He knows it. Everyone who has studied the Constitution knows it. He should be ashamed. As a lawyer, I certainly am ashamed of him.

posted by k.43 at 2:36 PM on March 14, 2001

it's absolutely clear that the clause of the First Amendment prohibiting the "establishment of religion" was intended to prohibit only a national church....The First Amendment did not prohibit states from establishing official churches, supported by state taxes.

No it did not, but the Fourteenth Amendment did.
posted by daveadams at 3:46 PM on March 14, 2001

dhartung wrote:

And there's plenty of room for federal gun laws under the 2nd amendment: who are "the people"? what is "keep and bear arms"? what is "infringed"?

Yeah, and it also depends on what the meaning of the word "is" is!
posted by Potsy at 5:52 PM on March 14, 2001

fooljay, I'm curious. Which of the ten commandments no longer make sense in today's world? Some might not like "Thou shalt have no other gods before me" or "Remember the sabbath and keep it holy," but on the whole, they're pretty general moral principles that most societies agree with.

To the extent that the constitution is a document reflecting democratic philosophy ("we hold these truths to be self-evident...") and general principles of government (separation of powers, etc.), I think it has as much relevance as it ever did. But it's ludicrous to say that our world closely enough resembles the late eighteenth century for the constitution, on its face, to be enough to ensure justice without a large degree of interpretation.

I think, for example, that the overall philosophy of the constitution, coupled with the state of modern America, should be enough to grant full and equal rights to women, without having to pass an equal rights amendment.

In any case, Scalia can be as judicially active as any other justice, when it serves his purposes.
posted by anapestic at 7:39 PM on March 14, 2001

To Daveadams:

The Fourteenth Amendment can be construed to forbit the states to establish religion only by some pretty fancy construing -- exactly what Scalia deplores. Application of his principles would require that the Fourtheenth Amendment be construed to protect state citizens only from denial of rights already guaranteed by the constitution, and not to create new constitutional rights, such as prohibition of establishment of religion by the states.

However, the Ninth Amendment expressly permits the recognition of additional constitutional rights. There's very good drafting history about the intent of this amendment, which Scalia conveniently ignores.

posted by k.43 at 3:00 PM on March 15, 2001

Anapestic, you're right. I don't have a problem with the Ten Commandments as general moral principles. I have a problem with the sometimes overly literal or scattershot application of them (and other parts of the Bible) by some folks. Interpretation, as you say above, is the key.

Anyway, my point wasn't necessarily to malign the Constitution or the Ten Commandments, but instead to question their classification as non-living documents...
posted by fooljay at 3:01 PM on March 15, 2001

To those of us who happen to believe in the Ten Commandments, they are hardly comparable to the Constitution at all. The Ten Commandments were written by God; the Constitution was written by men. God is omnipotent, omnipresent and omniscient; the founding fathers were just pretty smart.
posted by gazould at 3:36 PM on March 15, 2001

Right on Gazould!
posted by PrivateParts at 3:55 PM on March 15, 2001

gazould, I understand your position completely. It is not mine, but I can still respect it. Read my second paragraph above.

In your belief, did not God speak (through the commandments) directly to the people in a way that they could understand? Is it possible that those words mean something completely different in the environment/time in which they were spoken than they do today? Just a thought...
posted by fooljay at 3:42 PM on March 16, 2001

God is omnipotent, omnipresent and omniscient; the founding fathers were just pretty smart.

... but at least we're reasonably sure they existed. ;)
posted by kindall at 6:02 PM on March 16, 2001

posted by fooljay at 6:51 PM on March 16, 2001

I'm pretty comfortable with the ten commandments. What I'm not comfortable with is the lack of a commandment against rape. The God I believe in would have had something to say on the matter. Was it supposed to be covered under the stealing or coveting edicts, since women were considered property? I think the commandments were written by men interested in maintaining property rights and their position in a patriarchal society. I'm not saying that there is no God or that Christianity or Judaism are fundamentally wrong, but the fingerprints of man are pretty evident on those tablets, imo.
posted by gimli at 8:20 PM on March 16, 2001

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