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What type of document is the Constitution


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#1 Paul's Here

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Posted 14 February 2006 - 11:07 PM

Is there another view of how the Constitution should be interpreted other than "living vs originalism"?

People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.


Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."




http://tinyurl.com/b8ppz
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#2 Nathaniel Hale 1775

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Posted 15 February 2006 - 01:48 AM

I listened to a speech of his on C-Span a couple months ago and the basis of his argument is that there is no other way you can properly interpret the Constitution, then originalism. If you give the words of the constitution a meaning other then what they were intended to be, you are in effect throwing the constitution out. To say that it is a "living document", which can mean anything as time changes, is to say it has no objective meaning, which would essentially cause the judicial branch to turn into another legislative branch, which could create law by defining the constitution however they please. So if you want to change something in the constitution, simply have it amended. This is what I gathered from the speech.

I personally do not see any flaws in this line of thinking. Perhaps someone more informed could point out any, if there are any.
Still to new heights his restless wishes tow'r,
Claim leads to claim, pow'r advances pow'r;
Till conquest unresisted ceas'd to please,
And rights submitted, left him none to seize.

Samuel Johnson On the Vanity of Human Wishes

#3 Guest_ElizabethLee_*

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Posted 15 February 2006 - 03:10 AM

has anyone on the board heard Tara Smith's recent speech on this topic?

I would love to hear a summary.

#4 Jay P

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Posted 15 February 2006 - 04:21 AM

Is there another view of how the Constitution should be interpreted other than "living vs originalism"?
http://tinyurl.com/b8ppz

 


Yes. Actually, this subject has been discussed in this forum - look in the "law" section, and look for the topic with Scalia's name in it.

In one of the postings there, I set out my views on the subject, so I won't repeat them here. In summary, I think that the Constitution should be interpreted as a document that limits the powers of the government, not as one that grants, enumerates or limits the rights of individuals. The ninth amendment is crucial.

I'm no legal expert, but I think that those who advocate a "living constitution" are advocating legal subjectivism. I also think that those who advocate what is called "originalism" are in effect discarding the notion of rights, and instead advocating that the only "rights" individuals have are those things specifically mentioned in the Constitution. Again - see the other thread I mentioned, because these issues have been discussed extensively there.

....

I have heard from friends that Tara Smith's recent talk on this subject is excellent (as I'd expect). One of these days I'll get it and listen to it.
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#5 Jay P

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Posted 15 February 2006 - 04:30 AM

As I thought, in addition to the thread I mentioned, there's another place where originalism and Scalia's views are discussed.

Look in the "politics" subforum, and there's a topic with Scalia's name and originalism in the title. That also contains a long discussion of this.

So.... two places:

law subforum > topic on Scalia
politics subforum > topic on Scalia and Originalism
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#6 Paul's Here

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Posted 15 February 2006 - 03:46 PM

As I thought, in addition to the thread I mentioned, there's another place where originalism and Scalia's views are discussed.

Look in the "politics" subforum, and there's a topic with Scalia's name and originalism in the title.  That also contains a long discussion of this.

So.... two places:

law subforum > topic on Scalia
politics subforum > topic on Scalia and Originalism

 

Thanks. I'll check it out. My initial reaction to "originalism," as Scalia defined it, was that it seemed to contain an element of the appeal to authority argument: the only way to interpret the Constitution was to figure out what the originators intended. Why them? I could see no answer in his argument.
ANTHEM
"It is my eyes which see,
and the sight of my eyes grants beauty to the earth.


It is my ears which hear,
and the hearing of my ears gives its song to the world.


It is my mind which thinks,
and the judgment of my mind is the only searchlight that can find the truth."


---------

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(Avatar shows the Milky Way and our place in it.)

#7 Free Capitalist

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Posted 15 February 2006 - 06:09 PM

has anyone on the board heard Tara Smith's recent speech on this topic?

I would love to hear a summary.

 

Hi Elizabeth,

Yes, we did (a friend and I, back in January, 4 hour drive one way!). The differences between her view and Scalia's are controversial. I don't have my notes with me right now, but I'll try to convey the basic gist, and please remember that unless mentioned otherwise, none of this are her words but only my understanding of them (same goes for Scalia's words).

So, Tara Smith's argument, in a nutshell, was that all words refer to concepts, and concepts subsume an infinite amount of concretes, so therefore, at the same time when any words the Founding Fathers wrote in the Constitution should be read literally, they should not be held to be limited to the concretes the Founders themselves had in mind. Although Scalia also allows that, for example, new ways of communication (e.g. the Internet) are still covered by the First Amendment, he does not think this principle extends to everything, e.g. abortion, ideas which the Founders themselves actually opposed.

The reason why the case of the Internet and the case of abortion are different is that the Internet is a neutral case, and no basis could be determined for whether the Founders would have opposed it or not. In the case of abortion, it was illegal in the US for 200 years, from the time of the Founding, so wedo know that it was opposed by the Founding Fathers themselves, in law as much as in personal life. So Scalia's argument is, to consider the context of the words when they were written, as that context is what lends the words their meaning. By his argument, given the context in which the Constitution and the laws in the US were framed, it can't be held that that system of laws allows abortion, and the solution would not be to revise our view what the Constitution 'actually' means, but to do a plebiscite, or an Amendment. In other words, Scalia suggests to follow the very same steps that the Women's Suffrage Movement did in the 20s, who didn't hold that the Constitution included the right for women to vote, given the view towards women during the Founding, and thus simply created an Amendment to amend the situation.

Tara Smith would say that if the Founders wrote the laws according to the notion of protecting rights, which they did, then we can re-evaluate the old rule and consider all the old laws actually viewing abortion as legal, or that women did legally have the right to vote from the writing of the Constitution (but were denied it by the interpreters of that law). Again that's only my understanding of her argument. During the presentation she mainly used the example of abortion, and didn't say anything regarding women and voting, and that part was my own extrapolation.

So the controversiality of this whole issue is that Scalia looks at the Constitution in very fixed terms, considering only the concretes that the Founders either held themselves, or would otherwise be completely neutral about, while Tara Smith looks at the Constitution as a document that we should read literally (in agreement with Scalia) but also that we can revise our view of what it really means, according to the changing referents under the same old concepts. In this, we can interpret the words of the Founders to sometimes mean things different, or opposite, from the the Founders actually meant by them. This approach is different from the idea of Amendments, where a particular aspect of the Constitution is viewed as fixed, is disliked, and is therefore officially changed. I asked Tara Smith after the presentation about where Amendments fit in in her view, and from memory they seem not to have been the "be all, end all" feature and ability to her (unlike clearly being so to Scalia).

---

Note: Scalia also appears to adhere to the notion that rights are "positive" and are granted to a person by government, but that view does not extend to the issue of originalism that we're discussing here. I just thought I'd mention this, so that his view of rights wouldn't be considered a part of his view of originalism.
"I will tell you of the most native and greatest adornment of Athens, that which comprises and contains all the rest. Some lands are adorned as the birthplace of elephant and lion species, others as the birthplace of horses and dogs, and yet others of creatures the tales of which frighten children. But its land is adorned by the fairest thing on earth, not to be mentioned like some winged ants of India. For it was the first to bear Man."
-Aelius Aristides, 2nd c. AD

#8 Paul's Here

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Posted 16 February 2006 - 12:27 AM

I think both sides have interesting arguments, but I agree least with Scalia's arguments. One of the problems with the Constitution is that anything can be amended, so that is it possible, over time, to simply rewrite the Constitution. One could, conceivably, have a dictatorship with a constitution! I think a simple refutation of Scalia's argument would be the 18th Amendment which banned alcohol. According to his point of view, it's acceptable to pass amendments that violate rights as long as the majority so wishes.

I also think that, if you've presented Smith's arguments correctly, then the Constitution would have to be a much more detailed document explaining exactly the process for expanding rights to areas not already seen as applicable to rights. A detailed explanation of what rights were would have to be defined in the document. As the Constitution was originally written, it was simply a document that created a structure to facilitate interaction among the states. It was supposed to be a document in which the govt. could only do what was prescribed in the document. The Founders didn't have a full appreciation of how such an organization could violate rights to the extent that occurs today.

There is no political document, in my opinion, that will ever be written that will enable freedom to survive in a society that does not value reason.
ANTHEM
"It is my eyes which see,
and the sight of my eyes grants beauty to the earth.


It is my ears which hear,
and the hearing of my ears gives its song to the world.


It is my mind which thinks,
and the judgment of my mind is the only searchlight that can find the truth."


---------

"Life, if well spent, is long." - Leonardo

--------------------
(Avatar shows the Milky Way and our place in it.)

#9 Fesapo

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Posted 11 March 2006 - 02:08 AM

The substanative issue of about "Originialism" is interpretive. Is the "original intent" a proper consideration for interpreting the constitution? Or, as another group formulates it, is "original meaning" a proper consideration for interpreting the consitution. Some have argued that the author's intent is a subjective consideration and that one should go by the objectively written. I believe Harry Binswanger holds to the original meaning form of originalism. If you've gotten to your notes could you give us a better update?




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