The "Living Constitution"

I often hear that a Constitution written for an agrarian society shouldn't be expected to tailor to a more urbanized one (and thus should basically be ignored), but I have never heard any specific reasons why it is different. So I'd like to hear "Living Constitution" proponents' take on that.

The reason that the constitution is assumed to be written for an agrarian society is because it was. Industrialism was barely in progress at the time, if at all. Laser-Fairy (I have no clue how to spell that word.) economics was invented by a man who would have been incapable of comprehending the concept of mega-corporations dominating every industry. The founders stubbornly refused to entertain the notion that political parties would form, and so they weren't accounted for in their designs. The Constitution is in desperate need of being re-written. Also, the term "Living Constitution" refers to allowing it to be amended, and you're not seriously suggesting that it shouldn't be?

edited 8th Jun '12 8:52:54 PM by SeventhSeal

Firstly, a for that misspelling, and it's "laissez-faire".

A constitution that needs amendment? Say it ain't so.

Well, I think a constitution should really change to reflect its society. Now, that may be a bad thing, but this is democracy; if society changes its democratic institutions, then such institutions must change with it.

For those of you who do not live in the US and thus lack a more intimate understanding of the document in question.

"Laser-Fairy." Ha! I will call it that from now on, now. It certainly is easier to spell, and actually rather accurate in a twisted-logic fashion.

In any case, I believe most of the problems with the Constitution lay in the main body of the document, not the amendments. It's a practically ancient document written by rich old white men who assumed that rich old white men would and should be the ones to rule for the foreseeable future, and who legitimately expected the document to be rewritten every 25-50 years to account for changes in society. I firmly believe the Framers would be thoroughly irritated by our staunch reverence for what was to them barely a passable document.

If I were to be the rewriting for the Constitution, I would say that a lot of it is still serviceable. It just needs to be put in much more precise language in places (like, say, the Second Amendment), and updated to deal with modern values (allowing racial minorities, women, non-property holders, and the young adults to vote) and political practices (including direct election of Senators in the main body of the text, rather than as an amendment).

I would also add ideas of positive liberty, and possibly some negative liberties, as well. But that is getting past restructuring what is already in the document and into partisan ideas of what should be in the document.

Isn't Living Constitution an idea about how to interpret the document? It's not about amending it, as far as I know.

I always figured that it means we shouldn't be afraid of these few things; either re-writing it or adding in amendments, because the founding fathers knew that the future was going to hold things that they couldn't predict and we needed to be able to adapt. (I mean, sure, some of them predicting that the whole slavery issue was going to bite their descendants in the ass, but they couldn't predict the particulars or that the struggle for equal rights would take well over a hundred years.) The Constitution is meant to be a guideline, something where we largely follow the spirit rather than the absolute letter. Re writing or amending means we adapt this document to the times as we adapt; thus a changing and "living" document.

That's strict versus loose constitutionalist, or some such. I think the "living" adjective does apply to amendments, generally speaking.

http://en.wikipedia.org/wiki/Living_constitution

Yup, living constitution is about interpreting it. Its certainly not about "ignore" the constitution. Amendment is a bit off-topic, even believer of original intent like Scalia believe in legality of amending the constitution.

Amendments aren't off topic; the ability to add them is part of what makes the Living Constitution theory work.

But you can be opponent of "living constitution" while still believe constitution need to be amended. And one could support living constitution and oppose amendment. For example on privacy one could :

• 1. believe constitution already include privacy rights and not need amendment to confirm privacy rights. (Living Constitution, oppose amendment)

• 2. believe constitution already include privacy rights and still need amendment to confirm privacy rights (Living Constitution, support amendment)

• 3. believe constitution did not have privacy rights and therefore need amendment to confirm privacy rights. (Original Intent, support amendment)

• 4. believe constitution did not have privacy rights and not need amendment to confirm privacy rights. ( Original Intent, oppose amendment)

It wouldn't be the first time in recent years someone's called for a new Constitutional convention. Admittedly, it has the virtue of not pretending that the existing Constitution is consistent with the person's idea of how to run the country. I can respect that more than I can these painful attempts to read one's ideology into something that won't support it.

On the other hand, the people who call for a new Constitution usually can't even muster an amendment to the current document to advance the least of their pet causes. So in a sense, it's like refusing to learn to crawl, much less walk, before running a marathon.

Barring massive social revolution, rewriting constitutions generally never ever happens in a stable country. So "reinterpreting" a constitution via the living argument is perhaps the only politically viable way of keeping a document relevant with the times.

Though I think with people who believe in the "living constitution" argument need to name specific grievances because each one is likely to be solved independently.

For instance, Super-PA Cs with respect to freedom of... speech was it? That's just ridiculous and completely not the intention of that freedom. A modern democracy expects every citizen to have equal voice, not voice proportionate to the money they have. That's a shareholders' democracy in a corporation and last time I checked, USA hasn't incorporated itself yet.

People have voiced exactly that complaint, breadloaf. But with Republicans being what they are, and our Supreme Court having that Scalia guy or whoever on it, it's going to take a bit to officially change that in any sense. It doesn't necessarily need an amendment, it could be done with the Court reversing its earlier decision, but that's going to take getting another liberal judge or something on it. Until either of those things happens Super PA Cs are going to be a thing. (Because the judges already ruled that it is freedom of speech. Lots of people here are pissed about it.)

But yes, either through the Court or through an amendment, it would be an interpretation of the Constitution.

Okay.

The constitution (not counting amendments) was written by a bunch of people who lived in the late 1700's. Today is the early 2000's.

Even granting that the people who wrote the constitution were brilliant, it is still possible that there are people today just as brilliant, if not more. If the people who wrote the constitution wrote it now, in this current situation, it would be written differently from the constitution we know.

Well, if we go by international "complaints" about the US constitution, and the reason it is falling out of favour for being the de facto constitution to be based off of (they're saying the Canadian Charter of Rights and Freedoms is now one of the corner stones, and I suspect in the future, the EU Constitution which was in part based on the Canadian one will then become the next basis, assuming the EU doesn't fall apart).

• Nobody cares about gun rights. Seriously.
• Lack of protection for minorities such as LGBT groups, or women etc
• Notwithstanding Clause in the Canadian constitution is apparently very popular (the ability for states/provinces to temporarily withhold a right, requiring renewal of that type of legislation every few years)
• Supreme Court system that works a bit differently which is "not hiring judges based on their ideology but on skill", this is difficult to achieve in general though and "Supreme Court refuses to hear cases on the constitution if it thinks it is too controversial and let's a lower court judgement stand... it leaves the door open to making a different kind of ruling in the future" (this is used for things such as polygamy)

edited 9th Jun '12 4:06:37 PM by breadloaf

Aside from Breadloaf, who is advocating amendments as one should (will not derail into gun rights debate will not derail into gun rights debate), all I'm hearing is "that was then, this is now." What about now makes it more appropriate than it was then to invoke the commerce clause whenever a butterfly beats its wings over the Pacific?

(If they even bother to invoke the commerce and general welfare clauses at this point. Lately, seasoned politicians seem to have taken to scoffing when anyone brings up Constitutional justification.)

edited 9th Jun '12 5:08:11 PM by DomaDoma

1) What specifically does the commerce clause have to do with anything?

2) Doesn't that only apply to trade within our own borders? As in, stuff that only crosses our state lines?

That is how it was intended. But ever since the Supreme Court ruling that a local farm was affecting interstate commerce, it's pretty much been carte blanche for anything the government cares to do.

Well, depending on how far that produce goes, it does go under the auspices of the commerce clause. *shrug* If it crosses state line, it goes under federal review, as a basic interpretation. Specially with the bigger store chains and farms.

Though it would help with specific examples; the commerce clause is not something I've discussed often. "Carte blanche" doesn't actually tell me what they've done.

Do you have sources to back up these claims?

Here's a small sample.

And here's the Supreme Court case that started this nonsense. And the one that should have ended it.

And in case you hadn't seen these famous scoffing videos, here they are.

edited 10th Jun '12 7:21:05 AM by DomaDoma

Well, unless something is outlawed in a particular state, there's nothing stopping someone from buying something in one state then taking it to another. So just because you only produce or sell something within a particular state doesn't mean its not having an impact in other states.

I suppose if you made customers sign a contract agreeing not to take the product across state lines or to sell, loan, rent, abandon, or give it away, that'd be a different story.

edited 10th Jun '12 9:56:26 AM by RavenWilder

Which is what Doma's implying, I think. Though you have a point, that logic amounts to a blank check to ignore the states' prerogatives.

Only in things relating to commerce, though. I'm pretty sure an exchange of goods or services still has to occur for the commerce clause to apply.

If nothing else, I think the very idea that we have a concept of "States' prerogatives" is why the Constitution is terribly dated.

States should not ever have had "rights." States are organizational bodies, not persons, and their having "rights" has caused far more problems than it's helped. There is also my mention that the Constitution does not address positive liberty at all, which—insofar as I care—is a ridiculously terrible failing of the document (in relation to modern times; they obviously had no concept of positive liberty in 1789) that isn't going to be realistically addressed with amendments in an acceptable time frame.