Results 1 to 4 of 4
  1. #1

    Default Living Constitution vs. Originalism

    Originalism purports to restore the Constitution and to have originalist Justices simply transfer the meaning and/or intent of the understanding at the time of the construction of the text whereas the interpretation of the Living Constitution sees the Constitution as having a dynamic meaning and, because of this, an evolving interpretation is necessary to avoid the problems of applying outdated views to modern times.

    How many of you are originalists? What happens when an originalists comes across a word or phrase like We The People and is faced with the understanding that originally it did not encompass the types of people that would be covered today (i.e. blacks, women, and so forth)? If you're a Living Constitutionalist, where do you draw the line before bordering on 'judicial activism' and modifying the text in order to usurp the role of an ethicist rather than that of a lawyer? And can these approaches be used to compliment each other and be compatible in some way? Or are they doomed to be enemies?

  2. #2
    Join Date
    Aug 2007
    Posts
    3,835

    Default Re: Living Constitution vs. Originalism

    A common sense approach is what is needed, and most of the time, justice will be served.

    The court itself has overturned themselves over 200 times since 1789, mostly though non landmark decisons, as they have said themselves, stare decisis may be the more accepted approach, but the court is not bound by it.

    We have to define the Constitution with changing times, period.

    First, the Bill of Rights was not applicable to the states until incorporation started in the 1920's.

    Now we have a National Jurisprudence that can not be a state sovereign right, unless SC decision is positive in nature.

    As an example, let us examime the 4th AM:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    How is UNreasonable defined?? There can be in no way one bright line test.

    In 1791, the US did not have Airports, so the 4th would not apply.

    Now, is the govt. required to produce a Search Warrant for every customer??

    No, Administrative searches, as many airports entrances are now operated by govt. screeners, are permitted? There is no individualized suspicion, yet each bag is searched/screened?

    Would you say this violates the 4th AM for 1789?

  3. #3
    Join Date
    Jul 2010
    Posts
    2

    Default Re: Living Constitution vs. Originalism

    Quote Quoting BOR
    View Post

    Now, is the govt. required to produce a Search Warrant for every customer??

    No, Administrative searches, as many airports entrances are now operated by govt. screeners, are permitted? There is no individualized suspicion, yet each bag is searched/screened?

    Would you say this violates the 4th AM for 1789?

    Because the American Gov't added "Threat of National Security" to everything they do. Don't get me wrong, I like having my bags checked. It provides comfort to me at the airport, knowing everyone is getting their bag checked.

    But lets flip it around and they ruled it was Unconstitutional to check peoples bags with out permission. And, God Forbid there was an attack on a plane. there would be no deterrent from that happening again. Just my opinion.

  4. #4
    Join Date
    Jul 2010
    Posts
    17

    Default Re: Living Constitution vs. Originalism

    I do not agree that interpreting the phrase "We the people" to include women and blacks makes me a non originalist. In fact I think many of the authors specifically wanted to make sure that these words applied to people who would have rights in the future but didn't at the time. They did not have the power to drastically change everyone's perception instantaneously and make them accept those people as equals. Some of them even owned slaves, which could mean that they were more welfare providers than evil slave drivers.

    Most "modern interpretations" of the constitution are just naive and based on the type of blissful ignorance bred by long term peace.

    Most issues can be looked at in terms of simple theoretical generalizations that the authors of the constitution directly dealt with. The bottom line is it has always been the case that the people in charge see themselves as reasonable and not needing any oversight or empowered resistance because they would never do anything wrong. This is stupid and shortsighted, and always results in the government descending into a tyranny. The reasons are things like a lack of ability to see other people's points of view, or the lack of will to try when no one is allowed to try and make you.

    By giving all these rights to the people, the authors weren't trying to protect the people against them the authors. By virtue of the fact that they willingly included such rights, the authors demonstrated the people did not have to worry about them committing those acts. Instead, the authors were protecting the people against future self righteous governmental bodies who deemed their work more important than average people in general. And now we are faced with such governmental bodies, who are trying to subvert our rights by telling people that the rights didn't really apply to modern situations.

    Guess what? Modern situations are exactly what they were meant to apply to.

    1. Sponsored Links
       

Similar Threads

  1. Civil Rights Issues: Guns and the Constitution
    By wrtrblk in forum Civil Rights
    Replies: 7
    Last Post: 12-02-2010, 07:41 AM
  2. Constitution and U.S. Code
    By gimpster in forum Debate the Issues
    Replies: 41
    Last Post: 06-03-2009, 06:29 AM
  3. Constitution Day
    By BOR in forum Banter
    Replies: 5
    Last Post: 09-18-2007, 03:48 AM
  4. Legal Research: Presentation On Republican Constitution
    By usmans in forum Legal Practice
    Replies: 1
    Last Post: 11-27-2006, 08:28 AM
  5. Flag Burning and the Constitution
    By njkaters in forum Debate the Issues
    Replies: 8
    Last Post: 10-17-2006, 10:12 PM
 
 
Sponsored Links

Legal Help, Information and Resources