A "Living Document" | INFJ Forum

A "Living Document"

Discussion in 'News and Politics' started by Lerxst, Jul 21, 2012.

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  1. Lerxst

    Lerxst Well-known member

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    Something that bothers me when I hear people reference the Constitution or any of the Founding Father's works (in the US that is) is that they take a very static, literal translation of them.

    The US Constitution has been "nicknamed" a Living Document; it allows for changes and different interpretations to be made. James Madison even stated "Government must partake of the changes to which the words and phrases of all living languages are constantly subject" and Thomas Jefferson said, "As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times".

    200 years later, there seem to be a huge group of people that still want to take these archaic laws and the language and try to apply them to our modern society. Most of them even argue about "Constitutional Rights" and bring up the Founding Fathers, but... is that really what our Founding Fathers wanted us to be doing 200 years after they died? How patriotic can these people be if they pretty much spit on and ignore the words and beliefs of the people they model their core values of government on?

    And also, in a strange twist of words/meaning, those same two Founding Fathers founded the party that would later transition into the modern-day Republican Party. So now we have Conservatives, wanting to keep things exactly the same despite the people who started them, saying that the government needs to "change with the times" so to speak.

    The classic, specific example you could always use is the Second Amendment... Do you think they thought the British were always going to be knocking on our door, or do you think they may have realized times would change and laws like this should also be subject to change?
     
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  2. dwr46y

    dwr46y Well-known weirdo

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    If the US Constitution was a living document, it has died.
     
  3. palomica26.2

    palomica26.2 Community Member

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    As far as the Second Amendment is concerned, I guess the Founding Fathers figured that Americans would always need to defend themselves. I guess we now see how wrong and backward thinking they were because the world is now such a peaceful place where no one ever has any reason to have to defend themselves, whether they are armed or not. But if you want to repeal it, go for it. The Permanent Party is always looking for ways to increase the bureaucracy. I'm sure the president can create some cabinet level position through which he can impose his will on Americans because 51% thinks it's the right thing to do. Great way to run a country.
     
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  4. magister343

    magister343 Permanent Fixture

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    The Founding Fathers intended for and expected the Constitution to be openly and honestly amended or replaced much more than it has been. The Madison quote is actually warning that if we do not update the next of our Constitution and laws to match changes in our language that their meanings will change so as to allow things that the public never meant to authorize, essentially saying that the constitution needs to be updated so as not to become a "living document." They were very much opposed to what "living document" is taken to mean today, where the sophistry of the judges (particularly but not only the justices of the supreme court) is allowed to fundamentally change the meaning of the text to something that disagrees with the intention of those who gave the document its authority by voting to ratify it.


    The "living document" notion was invented by President Woodrow Wilson. It was meant to be a more palatable replacement for the view he espoused earlier in life, which was that the Constitution was just a worthless piece of paper that should not be allowed to prevent the government from doing absolutely anything that it wants to do. Wilson is often considered one of the "Progressive" presidents, but his views were pretty much Fascist. His admirers included both Mussolini and Hitler.


    Thomas Jefferson was among the foremost advocates of interpreting the Constitution very strictly. (He was a little hypocritical while in office though, in that he agreed to the Louisiana Purchase without first requiring a constitutional amendment to allow such an agreement, as he had claimed would be required.) He was also of the opinion that we as a nation needed to have a new revolution every generation. He did not mean a violent overthrow of the government as some have claimed. Rather, he meant that we as a nation should start fresh and create a new constitution every few decades, in order to give each generation a chance to ratify the government under which they were to live. Since the government derives its power from the consent of the governed, he did not consider it right for a constitution to be binding on a generation that was never given a chance to consent to it. Also, while he was very much in favor of decentralized power in his day, he expressed the belief that population growth would make a somewhat stronger and more centralized state necessary starting sometime in the 20th century.




    At the time of their ratification, the Constitution and the Bill of Rights were considered binding on the Federal Government, but not on the State governments except where that is explicitly stated. The first amendment begins "Congress shall make no law..." and was very clearly considered to only apply to the United States Congress. The several states were still free to make laws respecting religion, speech, etc. Likewise, the second amendment was seen as prohibiting the Federal government as intervening in the affairs of the state. A "well regulated militia" was the defense force that each state could use to defend itself not only from invasion by foreign powers but also from the federal government when it overstepped its bounds. The Feds could not prohibit states or localities from making, importing, or using weapons to defend themselves. The idea that the second amendment would be used to strike down local ordinances pertaining to gun ownership would seem absurd to the Founders. Many of the oldest cities in America had firearm regulations dating back almost to their founding, and most states had laws prohibiting slaves from baring arms. Some states borrowed that British law that required landowners to own firearms and forbid them to anyone else.


    The biggest issue when it comes to the interpretation of the Constitution is whether the Bill of Rights is Incorporated against the States by the 14th Amendment. These days the court tends to view it as incorporating the whole bill of rights, although when it was ratified it was generally believed that it simply ensured that the Civil Rights Act of 1866 could not be ruled unconstitutional. There is also considerable controversy as to whether the 14th amendment was ever legally ratified. Many Southern States were essentially forced to ratify it by the Union Army that was still occupying them. One state was only able to get a quorum large enough to ratify it by kidnapping several of the opposing legislators and holding them prisoner in the legislative chamber against their will. A couple states voted to reject it after ratifying it (in one case because a ballot recount found that many of the legislators who voted the first time had not been duly elected), but the Federal government still counted them as supporting it.



    None of the Founding Fathers had anything to do with the party that would become the modern day Republicans.

    The first (informal) parties were the Federalists and the Anti-Federalists. The Federalists (including George Washington, Alexander Hamilton, John Adams, John Jay, and James Madison) supported the US Constitution. They tended to be businessmen who favored having a more powerful central government and mercantilist trade policies. (Remember that the current Constitution was a huge Federal power grab when compared to its predecessor, the Articles of Confederation.) The Anti-Federalists (including Thomas Jefferson Samuel Adams, James Monroe, and Patrick Henry) were a much larger group that opposed them. They tended to be more agrarian and more classically liberal. They were very much concerned that the Constitution did not do enough to protect individual rights. They are the group responsible for the Bill of Rights. They only compromised and accepted the Constitution when it was promised that the first act of Congress would be to pass the Bill of Rights for the states to ratify. Since they did not want the government to be as strong a the Constitution allowed, they were vigilant to prevent it from becoming any stronger than the document legally allowed.

    (Hamilton was not only a mercantilist but also a monarchist, who wanted to make George Washington a king and hoped to be his heir as he had no children of his own. I get really upset when I hear people use John Adam's support for state supported healthcare for mariners as proof that the recent healthcare bill is constitutional, considering that "His Rotundity" Adams also strongly supported the Alien and Sedition Acts. This made it a federal offense to criticize the president, and sent people to jail for exercising what is clearly protected free speech.)

    After the Constitution and the Bill of Rights were ratified (note that some states only ratified after a largely Federalist Congress threatened them with trade sanctions), an Anti-Administration party was formed by many former Anti-Federalists and a former Federalists like James Madison who opposed the policies of Treasury Secretary Alexander Hamilton. This group evolved into the Republican Party when Thomas Jefferson became their de facto leader. This is not our Republican Party however. This Republican Party soon became known as the Democratic-Republican Party, and then eventually evolved into the Democratic Party of today. After the Jefferson became president, the Federalists lost most of their power and began to die off. (They continued to control the courts for a while though, as they used a lame duck session after loosing reelection but before leaving office to greatly increase the side of the judicial branch and pack it with Federalist judges appointed for life.) The Democratic-Republicans were the only major party (although it was a big tent party containing many factions) until the Whig Party organized in opposition to the policies of Andrew Jackson. The Whigs supported the supremacy of Congress over the growing power of the Presidency ("King Andrew I" was somewhat dictatorial and corrupt, although not so much compared to modern presidents), and like the Federalists favored Mercantilist, Protectionist policies over economic liberalism. Whig presidents tended to be war heroes without any real political philosophy. The party eventually collapsed.

    The first president from the modern Republican Party was Abraham Lincoln. The Republican Party formed shortly before the Civil War as a union between the Free Soilers (those who opposed the spread of slavery into the territories, although most were not principled enough to actually advocate the abolition of slavery where it already existed and some even opposed the spread of slavery on the grounds that they did not want any blacks living near them) and the remnants of the Whigs. They were very much a pro-business party from the start. At the time, this meant favoring Protectionism and large Subsidies to Corporations such as the railroads. It took decades before they began to pretend to favor free market instead of simply supporting the wealthy capitalists who in turn supported them with campaign donations. Probably the first actually principled Republican president was Calvin Coolidge.
     
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    #4 magister343, Jul 21, 2012
    Last edited: Jul 22, 2012
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  5. Saru Inc

    Saru Inc Schrödinger's Pussy
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    this entire topic is liberal bullshit.
     
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  6. Stu

    Stu Pre-Pottery B Neolithocrat
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    I think the second amendment was a admission of the fact that while the government is charged with providing for the security and safety of its citizens, it is not possible for it to be able to do it all the time, everywhere.
     
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  7. Brodskizzle

    Brodskizzle Community Member

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    Seriously? Being curious about the way that our nation's government works and trying to analyze the Constitution is bulls**t? That's possibly the single most anti-intellectual thing I've ever heard. But, in response to the original post, I think it's necessary to change. I don't necessarily think that there is one right way or wrong way to go about a nation's business, but I think there is an acceptable and an unacceptable way, and what is unacceptable is not changing to fit changing minds. Yes, the founders would be horrified by the federal highway system and income tax, but they'd be equally horrified by women's suffrage and democratically-elected senators. What it boils down to is: the Constitution was a good, acceptable way to run a nation in the 1790's, but it's not anymore, and we need to allow it to change so that we can run our nation in a good, acceptable way in the 2010's.
     
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  8. This

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    The problem is, if we can make it say whatever the hell we want than why even bother having a document in the first place?
     
  9. OP
    Lerxst

    Lerxst Well-known member

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    Really? I've used some lines from the Constitution in my arguments before, before I started thinking about the intended purpose of it. Libertarians use it all the time, Republicans quote from it repeatedly, Democrats swear by it and the rest of the Liberals often use it as the foundation of their arguments.

    The point is, how valid is it for anyone to use it in our modern society if the ones who wrote it even acknowledged the need for it to change periodically? It's the foundation of our country; how can it be Liberal or Conservative bullshit?
     
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  10. This

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    I believe the tones you threw in there about the second amendment are what he's referring to.
     
  11. Bird

    Bird Happy Go Lucky

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    Before I opened this thread I was really scared it was going to be a documentary
    focusing on non-human animal rights and we'd be watching a documentary on
    the slaughter of pets.
     
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  12. OP
    Lerxst

    Lerxst Well-known member

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    But...

    The Democratic-Republican party split twice; once into the Democratic party and later, into the Republican party as a counter to the initial divide. The one party was the "parent" to both of the primary parties we have today. The modern-Democratic party were the ones who had "different" ideas than the original party had and the modern Republicans were the ones who wanted to keep the initial ideals of the Democratic-Republican party. So therefore, Jefferson and Madison who were two of the founders of the Democratic-Republican party, are essentially founders of the initial ideology of the Republican Party as well - If A = B = C, then A = C.
     
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  13. Saru Inc

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    Ok. Well lets make the constitution change and in 100 years we'll go 'hey yeah that was a great idea!' you know, because in 20 years we will be saying 'hey yea obama care is a great idea!'

    If you don't see my point then you don't see my point. The bias is still there, even if you're trying to hide it under "sorry I'm just confused >.<" type post.
     
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  14. Nixie

    Nixie Resurrected

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    I would like to point out that the determining factor regarding the application of the Constitution does not reside with Congress. It resides with the Supreme Court, which is supposed to be non-biased and without party affiliation.

    People, parties and whatever can make any kind of constitutional claim they want---doesn't make it true.

    People get caught up in the rhetoric about the Constitution but rarely pay much attention to the actions of the Supreme Court. Hell, how many people can name at least 2 members? Or how about how many members are there in total?

    Shoot, what are the three branches of government?

    (without checking google!)
     
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  15. the

    the Si master race.
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    Is this sarcasm?


    -------


    I think there is an intention or "spirit of the document" that rings true for people and the only way that spirit can carry on is in the hearts of the people. But if he people wont fight for it then it isnt true for them so indeed at that point we can see in what ways the living document has died. The actual words are just guidelines as to what they authors really meant.

    On the other hand, it is obvious to me that the founding fathers were just trying to keep whats theirs, theirs and were going to politic their way any way they could to get it. I'm sure they expected everyone else to do the same thing too.
     
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    #15 the, Jul 23, 2012
    Last edited: Jul 23, 2012
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  16. OP
    Lerxst

    Lerxst Well-known member

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    Another interesting facts along these lines: The United States has one of, if not THE oldest government in the world. Europe was mostly under several Monarchies, Asia still had feudal & tribal systems, Africa, India and Australia were still colonies. Yet, we use documents and ideals that are over 200 years old, in a time where we were one of the only Democracies/Republics around, to guide us still, to this day.

    It's safe to say the modern world is much "smaller" in a sense and that many other countries have also made the transition to Democracies over the last 200 years. With that, shouldn't the words such as Jefferson's hold true - in terms of changes and revolutions as well as the Constitution?
     
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  17. magister343

    magister343 Permanent Fixture

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    The Supreme Court has never been anything close to a non-biased institution without party affiliation. It has been blatantly partisan since 1800.


    Technically Judicial Review is not found in the constitution. It was first proposed in the Federalist papers but not really established until Marbury v Madison. (Which, by the way, was horribly decided. The case in question did involve public ministers, which gave the supreme court original jurisdiction regardless of Marshall's decision to ignore the line that clearly gives Congress the right to change where the Supreme Court has original or appellate jurisdiction. Also, Chief Justice Marshall should have recused himself as he himself was the public minister responsible for delivering the commissions of the midnight judges.)

    The duty to uphold the constitution lies with everyone who swears an oath to do so. This includes the justices of the supreme court but also every member of congress, the president, and even officers in the military. At the time that the constitution was ratified, state nullification was regarded as a perfectly valid means of holding the Feds accountable.


    I don't think that proponents of a strict interpretation of the constitution as as ignorant as you think , or as ignorant as the general population. They just disagree with the common practice of ignoring the plain text and relying instead of precedents set by biased judges in the past.

    The size of the supreme court is set by statute rather than the constitution. Originally it had 6 members, but was changed to 7 in 1807, 9 in 1837, 10 in 1863, back to 7 in 1866 (not really though, as justices were not removed but just not replaced when they retired and it only got down to 8), and finally 9 in 1869. FDR tried to increase the number to 15 in 1937 in the biggest court packing scheme since 1801, but this failed to do anything but put pressure on the existing justices to side with the progressives rather than the constitution.

    From memory, the justices are:
    Roberts
    Alito
    Scalia
    Ginsburg
    Kennedy
    Thomas
    Souter
    Kagan
    Sotomayor
    Breyer (ok, I cheated on this last one)
     
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  18. Nixie

    Nixie Resurrected

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    You did notice I said "supposed to be" right? :)

    Edit: It also doesn't change the fact that matters regarding whether something is "constitutional" (on a Federal level) is decided by the Supreme Court.
     
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  19. muir

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    I think that we will see attacks on the second amendment in the wake of the aurora massacre
     
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  20. Brodskizzle

    Brodskizzle Community Member

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    We always do, and the conservatives say, "No, guns don't kill people, people kill people!" and then the liberals say, "Oh, Okay," and we forget it till the next massacre. It was the same after Tucson, Ft. Hood, and every other loser-with-a-gun event.
     
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