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Tropical_Man 67M
6573 posts
12/29/2007 7:01 am
Constitution is not a Living Organism


Constitution is not a Living Organism

Scalia: 'Constitution Not Living Organism'
Carl Limbacher

The Constitution is not a "living" document that changes with the times U.S. Supreme Court Justice Antonin Scalia says, but is to be interpreted on what the Founding Fathers meant at the time they drafted the Constitution.

"The Constitution is not a living organism," Scalia insisted.

Taking a position at odds with current opinion that holds that the Constitution changes in order to meet the needs of a changing society and thus acts as a "living document" that allows for flexible interpretations, Scalia says he takes what he called the "Originalist" point of view.

"Originalism was the dominant philosophy until 50 years ago," said Scalia. He repeatedly challenged the "living constitution" doctrine held by most law students and professors.

"Most people think the battle is conservative versus liberals when it's actually originalists versus living constitutionalists," Scalia said.

Scalia said he reads the text of the Constitution in a literal manner, a method in which the "plain and ordinary meaning" of the text guides interpretation. "Words mean what they mean."

"My system is flexible," he added, and went on to cite examples of his flexibility. "If you want the death penalty, pass a law ... if you want abortion, pass a law ... if you want something, persuade other citizens and pass a law," he said, by implication taking issue with activist judges who use the bench to create new laws.

Scalia said he does not foresee an immediate change from the active judiciary created by the living constitution approach, because, "It's a lot more fun to talk policy than to talk texts, and it puts more power in the hands of judges.
"

The living document controversy is not the only issue dividing Scalia from his colleagues - he has disagreed with his fellow justices in the matter of the court basing decisions on foreign law.

As Newsmax reported, Justice Ruth Bader Ginsburg said that as a justice she considers foreign laws ‒ not just U.S. laws and its Constitution - in forming her legal opinions.
Ginsburg said criticisms of relying too heavily on world opinion "should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey."

She also came down on the side of the living constitution position, telling members of the 99 year-old American Society of International Law in Washington, D.C. that "The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification."

In 2003, Justice Sandra Day O'Connor openly stated that the court should look abroad for judicial guidance, saying "The impressions we create in this world are important, and they can leave their mark."

O'Connor indicated she and the High Court had been influenced in recent rulings, citing foreign laws as having helped the Court rule that executing mentally retarded individuals as illegal. She also said the Court relied on European Court decisions when it struck down Texas's law outlawing sodomy or sex between adults of the same gender.

This drew a sharp rebuke from Scalia who wrote: "The court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court ... should not impose foreign moods, fads, or fashions on Americans." he said.

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My Opinion:
Judges who think that the constitution is a "living document" or who rely on foreign laws should be impeached as they are breaking their oath of office (they take an oath to defend the constitution). If US citizens think part of the constitution is no longer valid there is a way to democratically amend it. That power rests with the people and should not be arrogantly taken over by judges

walking_man
(Paul )
85M

12/29/2007 12:55 pm

Dennis,

Sometimes I can't figure out if you are as absolutist as I pick up on, or whether it is my interpretation.

The term "Living Organism" when applied to the Constitution is not literal. The degree of flexibility is the only thing in view. Scalia readily admits it is flexible.

For the basis of ..ahem.. discussion.. part of the literal definition of a living organism is that it has BOTH the properties of stasis and of growth and change.

Our initial government allowed for slaves to count for a 3/5 vote on the part of their masters. The event itself is referred to as the 3/5 compromise. Compromise has been an essential and inherent part of constitutional law from its genesis. The amendments allowing blacks to vote and women to vote radically altered all laws since.

As well, U.S. constitutional law borrowed heavily from English law and other countries as well. Things we regard as U.S. landmarks of freedom have almost invariably borrowed from/plagiarized others. These are not opinions; they are facts. Not sure what Scalia is getting at other than name-calling.

I do know of one former world government that would agree with you on executing mentally disabled and outlawing homosexuality, but let's not go there. As far as getting that latter law to stick, good luck!


IAmNotKen 61M

12/29/2007 11:37 pm

    Quoting walking_man:
    Dennis,

    Sometimes I can't figure out if you are as absolutist as I pick up on, or whether it is my interpretation.

    The term "Living Organism" when applied to the Constitution is not literal. The degree of flexibility is the only thing in view. Scalia readily admits it is flexible.

    For the basis of ..ahem.. discussion.. part of the literal definition of a living organism is that it has BOTH the properties of stasis and of growth and change.

    Our initial government allowed for slaves to count for a 3/5 vote on the part of their masters. The event itself is referred to as the 3/5 compromise. Compromise has been an essential and inherent part of constitutional law from its genesis. The amendments allowing blacks to vote and women to vote radically altered all laws since.

    As well, U.S. constitutional law borrowed heavily from English law and other countries as well. Things we regard as U.S. landmarks of freedom have almost invariably borrowed from/plagiarized others. These are not opinions; they are facts. Not sure what Scalia is getting at other than name-calling.

    I do know of one former world government that would agree with you on executing mentally disabled and outlawing homosexuality, but let's not go there. As far as getting that latter law to stick, good luck!

Paul, I have to respectfully disagree with you and you missed the point Scalia was making when he said he was flexible: If the masses want to change the constitution, amend it, PASS A LAW. Judges are suppose to uphold the constitution and not rewrite it!


Tropical_Man 67M
6389 posts
12/30/2007 6:38 am

It is simple...3 Branches

Executive-Presidential

Legislative---the ones making the Laws

Judicial- Judges that enforce the Laws and interpet them. Then there is the Supreme Court Justices whose job is when a law is being questioned, to determine if it follows the guidelines of the constitution. They are not legislators.

Paul you go way off of the whole issue here. Supreme Court Justices Job is to decide whether a Law is constitutional, based on US Constitution. Nothing else and Ken has it right. Pass a Law if you dont like it. Ginsburg needs to be replaced just on her abusing her position.

The constitution is not a "vague" piece of writing especially when you take the words at their meaning. Lets see....the country is 231 years old now and just in the past 50 years they all of a sudden consider it a living constitution. The forfathers greatly warned of this.

Paul you have taken the basic liberal approach in this, by taking a topic and since its indefensible on your side, you try and make it about me when clearly the issue is abuse by supreme court justices, and the underlying aspect is why are they doing this? To destroy the constitution that we have. The integrity level of Ginsburg and O'Connor is very poor and disqualifies them based on breaking their oath of office they agreed to.


Tropical_Man 67M
6389 posts
12/30/2007 6:41 am

to go even further this constitution and this country was based on Christian principals. Many of the founding fathers were very clear on this.

Is Jesus Christ and the spiritual aspects timeless? Yes. Jesus Christ the same yesterday, today and tommorrow. The same with Christian foundations.Its not up for debate unless you are not a believer.