Constitution Thread v.2.0

Discussion in 'Politics, Religion, Social Issues' started by mcrain, Dec 16, 2010.

  1. mcrain macrumors 68000

    mcrain

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    #1
    I've noticed that recently some forum members have argued against ideas, laws or proposals by using the term "unconstitutional." Rather than debate the merits of a particular idea or law or proposal, instead, there is this theory that Congress can not act in the way proposed. This would, in this theory, require Constitutional amendment before the idea or law or proposal could be considered. Aside from avoiding the underlying issue, this made me concerned about the overall understanding of our Constitution.

    Apparently people have some confusion about the powers granted by the Constitution. Hopefully this thread will give us a forum in which to discuss the document, the framers' intent, and the powers of Congress, the Executive, and the Judiciary.

    For starters, here's a link:
    University of Missouri, Kansas City School of Law

    I suggest reading the PDF written by Jeremy Waldron of NYU Law.
     
  2. fivepoint macrumors 65816

    fivepoint

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    #2
    One of the most important things to talk about in any 'constitution thread' is regarding the two most popular (and directly opposing) views of the constitution and consequently the role of government. It's important to note that there are individuals all the way from the lowest levels of law classes to judges on the supreme court who hold positions on both sides of the issue...

    The argument of originalism vs. activism basically boils down to this... do you think the words of the constitution mean anything and consequently that it should be read as intended and that any changes you desire must be made constitutionally go through the amendment process... or do you think they're 100% open to reinterpretation (i.e. subversion/redefinition)

    Activist vs. constructionist. Living Document vs. originalist.

    The mistake I fear most modern liberals make siding with the 'activist' or 'living document' side of this argument is that in their effort speed change for the better in their eyes, they're allowing the government to encroach on our liberties more easily (without amendment) than the founders intended. As long as the government is making the RIGHT changes in their eyes - it's worth it. What they don't seem to consider is what happens when the government wants to make the WRONG changes... changes they don't like. The Patriot Act is a perfect example... it clearly goes against the constitution, but due to judicial activism - a living document reading - the original words of the constitution were twisted and redefined to make the patriot act 'legal' under current law, even though it's clearly unconstitutional. So, the liberal defense of subversion for the sake of welfare, for the sake of social security, and universal healthcare, etc. has led directly to subversion for the sake of the Patriot Act.

    For a good starter-course on 'originalism/constructionism', I'd recommend reading this opinion piece, here.

     
  3. mcrain thread starter macrumors 68000

    mcrain

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    #3
    Yes, there are those at all levels who hold differing opinions, but in this field, judges are bound by precedent, so the question is not what is their opinion, but what is the law. Therefore, the binary choice you pose in the next paragraph is actually not quite right.

    The second option is NOT that the words of the constitution can be 100% open to reinterpretation, but rather that the meaning of the words evolves through time, legislation and legal action. In other words, the commerce clause still means what it did when it was written, but over 200+ years, it has been interpreted to include things like cellular phone service. It's not that the meaning of the commerce clause is changing, but that it's application either is or is not going to allow something. That may be confusing, and I probably did a crappy job explaining it, but suffice it to say that the second choice is NOT really a choice at all.

    The mistake I fear you are making, and others who hold your opinion, is that the Constitution is what the supreme law of the land, and the 200+ years of intervening Constitutional interpretation, is ALSO the law of the land.

    While different judges might have ruled differently over the years, they were authorized by precedent and the Constitution to do what's been done. To undo it, is far more complicated than merely saying they were wrong. To unwind the accepted interpretatino of the Constitution would require amending the Constitution, not the other way around.

    It's an interesting argument, but one that I don't think works, IMO.
     
  4. citizenzen macrumors 65816

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    Mar 22, 2010
    #4
    The problem, 5P, is your use of the word "anything".

    Of course the words meant something.

    And over two hundred years later those same words may mean something else. Freeze yourself in time as much as you like. I prefer the uncryogentic view of the Constitution as a living and breathing document, one being shaped by time instead of frozen in it.
     
  5. chrmjenkins macrumors 603

    chrmjenkins

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    CA
    #5
    Subversion has a necessarily negative connotation. Redefinition isn't much better, as it implies the original content has somehow been changed.

    You have to face the fact that the judicial branch of our government exists to interpret what the Constitution means. The founders were intentionally terse with the Constitution because they believed that the country should be guided by some core principles, but the rest should be decided through the law making process. The beauty of this idea is that we are not encumbered with archaic ideals in a modern world. The judicial branch is free to interpret the meaning of the Constitution in a modern context, i.e. a world with a stock market, social security, fiat currency, advanced medical procedures, vehicular transportation, etc.

    The point is that you can't get around judges "re-defining" the law because you're specifically suggesting that they are activist when they interpret the Constitution in such a way that you disagree with their conclusion.
     
  6. mcrain thread starter macrumors 68000

    mcrain

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    #6
    Not to mention that there is a check / balance for the situation where the Judges are redefining things in a way that you don't like.

    It's called legislation. If that's not enough, there is also amendment. Until then, what the legislature passes, the executive signs, and the Judges say is legal is the law of the land regardless of whether you are a constructionalist or whatever term FP used.
     
  7. fivepoint macrumors 65816

    fivepoint

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    #7
    It seems quite clear that we're not going to change eachother's minds... so I'll just leave my post above here for people to read, and they can make up their own mind on whether my position is right or yours is.

    To me the bottom line is this... our constitution is an amazing document which was designed to protect the freedom and liberty of it's citizens first and foremost. The chief responsibility of this document created by the people was to create a government so constrained and so limited in power that it could not give in to the natural tendency of government to gain more power, take more wealth, and restrain liberty in the name of security. It was created specifically as a cap on governmental power and growth with enumerated powers which were not open to debate and told the government a very select few things it could do... all other powers remaining with the individual states and the people respectively. That being the case, allowing the federal government to change the constitution, to redefine it as time goes on, essentially means that they have unlimited power to define their own power without proper amendments (which were specifically designed to be hard so as to further limit the growth of power in this government). If the document is a 'living and breathing' one, open to changes and redefinition as each generation sees it differently, it's fundamentally no longer a document used to limit power but to expand powers as those in charge see fit. If the words don't mean exactly what they mean, if subversive change can be justified, then the very essence of the document has been lost.

     
  8. citizenzen macrumors 65816

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    Mar 22, 2010
    #8
    For being a strict constructionist you sure like to interpret a lot. The "chief responsibility" is actually spelled out in the preamble...

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    That my imaginative friend are very ambitious and involved chief responsibilities. Sounds to me like you'd prefer to ignore the actual words in the document and instead apply your own interpretation. Don't sweat it. That happens to almost everybody.
     
  9. Ugg macrumors 68000

    Ugg

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    Penryn
    #9
    That's funny because your buddy Tommy did an end run around the Constitution when he made the Louisiana Purchase from France. There's no denying that it was a good deal and in the best interests of the US, but there was absolutely no provision in the USC for acquiring new land. It also took power away from the states.

    Anyone who thinks the FF were gods on earth is sorely mistaken. They were power hungry men limited only by competing interests from other power hungry men. Slavery is one of the greatest stains of the Constitution, the Southerners' greed was more important than the empty phrase "all men are created equal".
     
  10. Huntn Suspended

    Huntn

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    #10
    The Constitution is a document that is ours to modify as we see fit. We as a society decide what is important and what is not, what needs to be updated and what should be left alone. I realize there is a lot of debate based on what the founding father's really ment for example the "general welfare clause" and the ability to regulate commerce. Overall I support the idea of modifying the Constitution with amendments where a new power is needed. I've noticed that some people say that Social Security is unconstitutional but an argument can be made that the "general welfare clause" covers it.

    Great points! Going outside the literal interpretation of the Constitution is not something that just happened in the aftermath of the Great Depression.
     
  11. CaptMurdock macrumors 6502a

    CaptMurdock

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    #11
    The real bottom line is this:

    The Constitution serves our society...not the other way around.

    Nuff Said.
     
  12. mcrain thread starter macrumors 68000

    mcrain

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    #12
    We probably won't change each other's opinions about how the Constitution should have been interpreted, and your opinion is as valid as mine or anyone elses. In fact, many judges and politicians agree with you.

    On the other hand, what you can NOT deny is that the Constitution authorized the Supreme Court to determine whether laws passed by the legislature and signed by the executive were on their face, or in implementation, Constitutional. Over the last 200+ years, there is an answer to the question of whether the Commerce Clause or Spending Clause allow Congress to do certain things. You, or I, may not like it, but that's just how it is.

    As such, arguing for example that Social Security is unconstitutional is a wasted effort, and really nothing more than a distraction. That's not to say that it would be a waste to argue whether the Constitution should be amended to change the current interpretation of the Constitution. In fact, that might be an interesting argument. (Probably fruitless, as amending the Constitution is not easy, and I can't imagine convincing that many states to amend the constitution obviating 200 years of history and law). unconstitutional).
     
  13. fivepoint macrumors 65816

    fivepoint

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    #13
    Reasonable.


    I do not deny that the supreme court has ruled as such... but just as those fighting for gay rights, or against the patriot act, or against the recent Citizens United case, I will continue to fight for what I think is right. I believe history is on my side, original intent is on my side, logic is on my side, and as such rulings have often been overturned in our short history... I will continue to wield those weapons against the status quo until it's changed. It has hardly a wasted argument. It should be at the very core of the argument.
     
  14. mcrain thread starter macrumors 68000

    mcrain

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    #14
    That's very reasonable, I just ask that when you argue for the result you want, you please at least correctly frame the argument in a way that doesn't confuse everyone who hears you.

    What you want is to interpret the Constitution in a way different from what is law today. To accomplish that, you must amend the Constitution to BOTH undo 200+ years of legal interpretation and also restrict the powers of the Judicial branch.

    When you argue that the Constitution is being interpreted incorrectly, you are in essense saying that you want amendment without having to go through all the hassle of complying with the Constitution.
     

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