No doubt a defining difference between conservatives and liberals is the view each has of the Constitution. Are we bound by its strictures....or do we waffle with the political winds?
1. Earlier, one of our community posted his view. He appears to be a bit shy, so I'll simply quote what he said: "As for the constitution (sic) changing, as Justice Hughes said, the constitution (sic) is what the courts say it is, and Justice Hughes could have added, and the justices keep changing."
Put more clearly, should amendments, or judges decisions, alter the Constitution?
2. For comparison, here is the conservative view:
"Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, a judiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country."
This, the view of Chief Justice Rehnquist.
Rehnquist's view is that, beyond respect for the oldest constitution in the world, it should be viewed as the law of the land.
BTW...it is the law of the land.
3. The case for the liberal view was made by Justice Wm. Brennan, jr in his 1985 Georgetown speech, he supported the transformative purpose of the Constitution, in which he argued for an aspiration to social justice, brotherhood, and human dignity
Sounds pretty good....so, then, why are progressives hesitant to respect the Constitution's Article five, which describes the process whereby the Constitution may be altered? Amendments.
Could it be that the elites are afraid that the people might not agree?
Progressives don't seem to trust the people, do they.
a. Progressives use vague terminology, such as aspiration to social justice, brotherhood, and human dignity so that any position can be justified.
Judge Bork: Not only is moral philosophy wholly inadequate to the task, but there is no reason for the rest of us, who have our own moral visions, to by governed by the judges moral predilections.
4. Brennan goes on to state that we cannot discern how the Framers would apply moral-philosophic natural law to modern problems. Brennan denies any static meaning, but looks, instead, for adaptability, saying that the genius of a constitution lies in the fluidity of its meaning...
Imagine any individual with whom you signed a contract trying to use that argument....
5. Actually, there is an entire school of thought based on the clear text... For an originalist, direct evidence of the actual use of a word is the most important source of the words meaning. It is more important than referring to the broader context, or the larger context, or the underlying principles, which is the means by which some jurists are able to turn black into white, and up into down.
As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word commerce appeared in the Philadelphia Gazette between 1715 and 1800.
a. Judge Bork makes the point that originalists can easily apply timeless constitutional commands to new technologies, such as wiretapping and television, and to changed circumstances, as suits for libel and slander. All the judge needs is knowledge of the core value that the Framers intended to protect. And, while we may not decide every case in the way the Framers would have, entire ranges of problems will be placed off limits to judges, thus preserving democracy in those areas where the framers intended democratic government.
6. Brennan falls back on the idea that moderns should not be bound by a world that is dead and gone. Of course, there are lots of laws on the books today by folks dead and gone: Social Security laws, or the Civil Rights Act of 1964, or the Sixteenth Amendment imposing an income tax, and all nine justices who participated in Roe v. Wade are now dead. Would Brennan suggest ignoring any of these .or does he simply wish to allow judges to pick and choose which laws written by dead people we are to be bound by? This transformative view would simply allow justices to erase parts of the Constitution.
a. Brennans view is that those of us in the present generation are better able to judge than our benighted ancestors. Really? The American Constitution has survived for two centuries, the oldest and first such document in existence, and has inspired countless copies around the world. Through it we remain the freest and most fortunate people on earth.
7. Finally, the transformative view raises the level of generality of the Constitution in order to justify the left-wing outcomes that progressives want. Brennan identifies the Bill of Rights as protecting human dignity, then asks whether the death penalty, for example, is compatible with human dignity. A perfect example of sophistry, and lawyerly sleight of hand. The text of the Constitution does not speak vaguely of human dignity but does specifically of freedom of speech, and of the press, about unreasonable searches and seizures, and about property not being taken capriciously. So, Brennan twists the ideas to produce what he deems good consequences. By that endeavor the rule of law and not of men becomes impossible.
Above based on "Originalism: A Quarter-Century of Debate," by Steven G. Calabresi and Antonin Scalia
So, does America wish to allow judges of each generation to re-write the Constitution as their whim directs, or continue to be the nation memorialized in the Founder's document?
And, if we do wish to change the original...what is the argument for ignoring the amendment process?
1. Earlier, one of our community posted his view. He appears to be a bit shy, so I'll simply quote what he said: "As for the constitution (sic) changing, as Justice Hughes said, the constitution (sic) is what the courts say it is, and Justice Hughes could have added, and the justices keep changing."
Put more clearly, should amendments, or judges decisions, alter the Constitution?
2. For comparison, here is the conservative view:
"Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, a judiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country."
This, the view of Chief Justice Rehnquist.
Rehnquist's view is that, beyond respect for the oldest constitution in the world, it should be viewed as the law of the land.
BTW...it is the law of the land.
3. The case for the liberal view was made by Justice Wm. Brennan, jr in his 1985 Georgetown speech, he supported the transformative purpose of the Constitution, in which he argued for an aspiration to social justice, brotherhood, and human dignity
Sounds pretty good....so, then, why are progressives hesitant to respect the Constitution's Article five, which describes the process whereby the Constitution may be altered? Amendments.
Could it be that the elites are afraid that the people might not agree?
Progressives don't seem to trust the people, do they.
a. Progressives use vague terminology, such as aspiration to social justice, brotherhood, and human dignity so that any position can be justified.
Judge Bork: Not only is moral philosophy wholly inadequate to the task, but there is no reason for the rest of us, who have our own moral visions, to by governed by the judges moral predilections.
4. Brennan goes on to state that we cannot discern how the Framers would apply moral-philosophic natural law to modern problems. Brennan denies any static meaning, but looks, instead, for adaptability, saying that the genius of a constitution lies in the fluidity of its meaning...
Imagine any individual with whom you signed a contract trying to use that argument....
5. Actually, there is an entire school of thought based on the clear text... For an originalist, direct evidence of the actual use of a word is the most important source of the words meaning. It is more important than referring to the broader context, or the larger context, or the underlying principles, which is the means by which some jurists are able to turn black into white, and up into down.
As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word commerce appeared in the Philadelphia Gazette between 1715 and 1800.
a. Judge Bork makes the point that originalists can easily apply timeless constitutional commands to new technologies, such as wiretapping and television, and to changed circumstances, as suits for libel and slander. All the judge needs is knowledge of the core value that the Framers intended to protect. And, while we may not decide every case in the way the Framers would have, entire ranges of problems will be placed off limits to judges, thus preserving democracy in those areas where the framers intended democratic government.
6. Brennan falls back on the idea that moderns should not be bound by a world that is dead and gone. Of course, there are lots of laws on the books today by folks dead and gone: Social Security laws, or the Civil Rights Act of 1964, or the Sixteenth Amendment imposing an income tax, and all nine justices who participated in Roe v. Wade are now dead. Would Brennan suggest ignoring any of these .or does he simply wish to allow judges to pick and choose which laws written by dead people we are to be bound by? This transformative view would simply allow justices to erase parts of the Constitution.
a. Brennans view is that those of us in the present generation are better able to judge than our benighted ancestors. Really? The American Constitution has survived for two centuries, the oldest and first such document in existence, and has inspired countless copies around the world. Through it we remain the freest and most fortunate people on earth.
7. Finally, the transformative view raises the level of generality of the Constitution in order to justify the left-wing outcomes that progressives want. Brennan identifies the Bill of Rights as protecting human dignity, then asks whether the death penalty, for example, is compatible with human dignity. A perfect example of sophistry, and lawyerly sleight of hand. The text of the Constitution does not speak vaguely of human dignity but does specifically of freedom of speech, and of the press, about unreasonable searches and seizures, and about property not being taken capriciously. So, Brennan twists the ideas to produce what he deems good consequences. By that endeavor the rule of law and not of men becomes impossible.
Above based on "Originalism: A Quarter-Century of Debate," by Steven G. Calabresi and Antonin Scalia
So, does America wish to allow judges of each generation to re-write the Constitution as their whim directs, or continue to be the nation memorialized in the Founder's document?
And, if we do wish to change the original...what is the argument for ignoring the amendment process?
