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Justice Scalia declares the Constitution is "dead, dead, dead."

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  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    Nicole Flatow, ThinkProgress, January 29, 2013: Justice Scalia: The Constitution Is ‘Dead, Dead, Dead’

    Justice Antonin Scalia, speaking at Southern Methodist University on January 28th, said this about our Constitution: "It’s not a living document. It’s dead, dead, dead."

    "Scalia has made similar comments before. In 2006, he said “you would have to be an idiot” to believe the Constitution is alive, and in 2008, he told NPR, “Let’s cut it out. Let’s go back to the good old dead Constitution.” In fact, given reports of similar comments just this past December at Princeton, his “the Constitution is dead” refrain seems to now be a standard part of his book tour."

    Other Supreme Court justices have stated or implied by their words that the Constitution is a "living document." President Barack Obama has also called it a "living document." Perhaps this is why Justice Scalia is going out of his way to call it "dead."

    So who is correct, and what exactly is meant by a living or dead Constitution? Those words mean different things to different people. In Wikipedia, a Living Constitution is described as a "loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases."

    I couldn't find a similar description in Wikipedia of a "dead Constitution," but Justice William H. Rehnquist attempted at least to cover what he perceives as the many fallacies that people have regarding what a living Constitution means. So if one agrees with Rehnquist and rejects all variations of concepts of a living Constitution, does that mean by default the Constitution is then dead?

    THE NOTION OF A LIVING CONSTITUTION; WILLIAM H. REHNQUIST

    It's a rather long but revealing document that may be of more interest to Constitutional scholars.

    Just thinking about this. Opinions invited...
  • Democrat
    Meridian, MS
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    Hey Schmidt, just one small comment. Not speaking about the ENTIRE Constitution, as I am no scholar, but just the 2nd Amendment, this appears to be a dead amendment to me. The right to bear arms is all it says, but "arms" have definitely changed over time, while the Constitution has not. Anything living does change over time, so I think you can see my point. Wayne and company love the fact that they can use the exact words of our founders to justify their way-over-zealous approach to firearms rights and responsibilities.
  • Independent
    Ft.myers, FL
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    "michaels" exactly my thoughts! As I mentioned in a lot of my "threads" the whole thing here is that they seem to clamp onto antique documents, which as other countries do, have to be updated from time to time to adjust to a changed society. This is in this respect a strange country, for instance in Europe they have much more history then here but they actually are not that much interested in it. Here they overdo history and are way to dead serious about old documents indeed like the 2nd amendment; why are they so scared to "amend" that?
  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    Michaels and Dutch --

    Yes I'm inclined to agree with respect to the 2nd Amendment. I am also not a legal scholar, and whenever I venture into these type of topics, I quickly find myself above my head. Nevertheless, I think all citizens should try to understand more about our Constitution and our system of laws, and not just cherry pick one favorite clause in an amendment, as the gun cult has, without looking at the contextual basis of that amendment, its history and its hierarchy in relation to other amendments as well as its interpretation in related Supreme Court opinions. With that in mind, I actually was fascinated in reading Justice Rehnquist's opinion piece. While he was arguing against a so called "Living Constitution" many of the observations and arguments stimulated my thoughts as to the make-up and thinking of our current Supreme Court. I'll extract a few lines:

    Page 413: "Beyond the Constitution and the laws in our society, there simply is no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments. There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa. Many of us necessarily feel strongly and deeply about our own moral judgments, but they remain only personal moral judgments until in some way given the sanction of law."

    He continues by quoting Justice Holmes:

    Page 413: "Certitude is not the test of certainty. We have been cocksure of many things that were not so. . . . One cannot be wrenched from the rocky crevices into which one is thrown for many years without feeling that one is attacked in one’s life. What we most love and revere generally is determined by early associations. I love granite rocks and barberry bushes, no doubt because with them were my earliest joys that reach back through the past eternity of my life. But while one’s experience thus makes certain preferences dogmatic for oneself, recognition of how they came to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else. And this again means skepticism."

    Justice Rehnquist in these statements understands at least that the justices of the courts like all other citizens have worldviews related to social and economic justice, but that the mechanism for bringing these views into law is the legislative process and not the courts.

    Page 414: "It should not be easy for any one individual or group of individuals to impose by law their value judgments upon fellow citizens who may disagree with those judgments. Indeed, it should not be easier just because the individual in question is a judge. We all have a propensity to want to do it, but there are very good reasons for making it difficult to do."

    He also quotes the great English political philosopher John Stuart Mill:

    Page 414: "The disposition of mankind, whether as rulers or as fellow citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feeling incident to human nature, that it is hardly ever kept under restraint by anything but want of power. . ."

    Okay, good stuff...good reading. However, is this view of one former Supreme Court Justice necessarily the practice of the nine justices of our current Supreme Court? Psychologists claim that our worldviews are a combination of our genetic makeup (our DNA) and our life experiences. Some say it's a 50:50 split, but that is probably an average. Within our genetic make-up is the trait of empathy, which is more developed in some people than others...we all have it to some degree. As Justice Holmes has stated what we love and revere generally is determined by early associations.

    In the case of our current Supreme Court, many TV pundits like to simply categorize them as 5-4. conservative - liberal, but that doesn't begin to describe how they think on a range of issues. My view is that it is more like 3-2-4...three far right (Scalia, Thomas and Alito), two moderate right (Roberts and Kennedy) and four centrists (Breyer, Sotomayor, Kagan and Ginsburg). However, only Scalia, Thomas and Alito will consistently vote conservative on a whole host of issues based only on their respective worldviews, lacking empathy, and using a "rigid or dead" Constitutional interpretation to hide behind those views. Breyer, Sotomayor, Kagan and Ginsburg are more likely to consider that the Constitution is a "living document" and must adapt to the modern thinking of society, such as in LGBT rights.

    However, when it comes to a minority imposing their will on the majority, those three members of the current court will consistently fall back on their own worldviews, and concoct briefs in colorful language to support whatever they think the Constitution means. And their particular worldviews have not at all been modified or mellowed through deliberative discussion and debate in the courts, but rather are reinforced, as for example, Justices Thomas and Scalia seeking out venues to reinforce those beliefs...like attending secret conferences in Palm Springs and Aspen sponsored by the Koch brothers...or giving a speech at conservative SMU in Dallas.

    The concept of a "dead Constitution" serves Scalia, Thomas, and Alito well as they do not have to think critically but rather just yield to conservative ideology.
  • Democrat
    Meridian, MS
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    AMEN Schmidt, your thoughts are mine. I truly believe that America (the U.S Congress) needs to update this second Amendment wording to make it more "in tune" with the passing of centuries. Not that it should specifically state that any specific weapon should be banned or made illegal, but it should make the Amendment's language more appropriate with today's world. For example, IF the Congress agrees, it could read: "A well regulated military organization being necessary for the security of a free state/country, the right of a people to keep and bear defensive arms shall not be infringed", while it does read: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed". This, to me, would take care of the issue. Assault weapons of any type are not defensive armaments. Case closed.
  • Independent
    Ft.myers, FL
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    "michaels" indeed correct; may be we are way too simple minded; I bet (if ever) not such logic wording as you use will be used; it will be at least a mile long because of all the lawyers and wise noses, who claim they know it better than you or me.
  • Democrat
    Meridian, MS
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    Dutch, it sure seems to me that any likely change to an Amendment of our Constitution would be far, far easier to pass, the more simple it was. IF all those lawyers got together and started adding the legalese and flowery language of many legal documents, it would just make it like "Greek" language, difficult for Americans to read and interpret. It needs to be short, definitive language, interpretable ONLY one way, the way it IS intended.
  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    Michaels and Dutch -- Yes I agree with you both on the 2nd amendment. Rewrite it to provide more specificity as to a military organization and not militia, and keep it simple. Actually, much of the Constitution and its Amendments are not that difficult to understand, but they do have ambiguity enough for the courts to modify the prevailing interpretations to provide more clarity consistent with social norms of the day...and not yesterday...or 200 years in the past. Scalia would cite the specific role of Executive and Congress in passing laws, yet the very court he serves on has usurped the authority of the legislative process in what is commonly labeled "judicial review"...e.g. Bush v Gore.

    Jack M. Balkin, Yale Law Journal: Bush v. Gore and the Boundary Between Law and Politics

    "It is no secret that the Supreme Court's decision in Bush v. Gore has shaken the faith of many legal academics in the Supreme Court and in the system of judicial review. It is worth considering why this should be so. Legal academics rationalize bad judicial decisions all the time; that is part of their job description. Moreover, the fact that a few judges occasionally make mistakes in legal reasoning, even very egregious mistakes, should come as no surprise, nor should it cause one to lose faith in the rule of law, the U.S. Supreme Court, or in the system of judicial review. Likewise, the fact that a few judges occasionally decide cases because they secretly favor one party over another should also come as no surprise; nor should isolated examples of judicial corruption cause one to lose faith in a larger process of legal decision making. The problem with Bush v. Gore, I suspect, was the case was too salient an example of judicial misbehavior for many legal academics to swallow. It was no isolated fender bender in which a local judge helped out the son of a former law partner. Rather, the case decided the outcome of a presidential election and may well have determined who would sit on the Supreme Court and the lower federal courts for decades to come."

    Amen to that...

    In browsing the internet for overturned Supreme Court cases, I found this artcile: 10 Overturned Supreme Court Cases

    The article covers 10 Supreme Court cases that were later overturned by the Supreme Court itself...but much later in most cases when the court had replaced many of its justices, with the new justices having differing worldviews from the former justices. That this happens at all suggests that the Constitution is a living document whose interpretation requires a common sense view consistent with the times. But it also highlights the dangers of judicial review when the court is stacked with political appointees with an agenda other than serving "we the people." Thankfully the mistakes of earlier courts can be corrected by later courts with more objectivity, but this current court worries me. If they ever have to review Roe v Wade, will they overturn it?

    The Citizens United ruling is the other case that immediately comes to mind. Justice Scalia cannot even justify that ruling under a "dead Constitution." It's all politics.
  • Strongly Liberal Democrat
    Democrat
    Portland, OR
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    It is dead to Mr. Scalia when it suits him. It is alive and well when it doesn't. Let's take the 2000 election. Where in our Constitution does it state that the Supreme Court has the legal right to step in when a Presidential Election is in question? The Constitution states that it sends the election back to the House of Representatives for them to figure it out, as they have twice before in 1800 and 1824. Not until 2000 did the Supreme Court decide to usurp the House's authority and declare a winner of a Presidential election for the first time in our nations history. I still haven't found a good explanation from Mr. Scalia with regards to that besides "get over it." So it seems that he only finds the Constitution dead when he decides that it is.

    The Framers explicitly made the Constitution a living document when it left open the possibility for Amendments to it. They understood full and well that times will change and that future generations will have to adapt to those times. Take the Thirteenth Amendment that did away with slavery. If Mr. Scalia is accurate in his interpretation of the Constitution, then we should still have slaves because it isn't in the original text. Or take the Nineteenth Amendment, which allowed women the legal right to vote. Is he suggesting that women are inferior because it wasn't in the "original" text of the Constitution?

    The Constitution always has and always will be a living document. Only recently is it being argued that it is a dead document. The Right in our country pick and choose what their favorite parts of the Constitution are and live and die by those favorite parts. Thankfully, it is strong enough to withstand an attack by Mr. Scalia. It might just take a little time.
  • Democrat
    Lawrence, MA
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    During the Vietnam fiasco Truman Nelson. the historian, wrote a book in which he said the Constitution and the Bill of Rights are admirable documents until you really need them. The government then often withdraws them. This has been the case with governments since antiquity. Those with the power who enact the "rights" can also withdraw them at their convenience .....Lincoln with habeus corpus during the Civil War, Free Speech during WW!, the right to privacy since George W....... if arrested the right to trial before you are old and gray.......The right not to be illegally siezed and searched, martial law etc. There are government trials now going on where the prosecution is allowed to confer secretly with the judge, but the defense is not allowed to know what is being said......The Constitution , which was basically in need of major up dating to begin with, is now in the process of being slowly and not so subtly dismantled......There is no way out of this dilemna, because once people hand over their personal sovereignty to a ruling clique they have surrendered their liberty. Just as when the government passes a law that leaves us no alternative but obedience....then we are slaves. Admittedly , this is a rock bottom philosophical concept, but it's good to keep in mind when the gov is attempting to hypnotize us with patriotic slogans.
  • Independent
    Ft.myers, FL
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    "schmidt, jared, left" all very good pieces which describe the truth about the system; basicly "politics" as usual. Even our voting rights often can not prevent that in certain positions the wrong people are selected and may act as a "chameleon" when elected. That's life in the fast lane!!
    However I'm (as well "michaels") of the opinion that it does not take much to reword the 2nd Amendmend to modern times.
    Thus: Politics, politics, politics, politics etc.
  • Democrat
    Lawrence, MA
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    I didn't see this myself, but my brother called and said that Democracy Now reported today that Obama sent a memo to the Senate stating that.he has the right to trarget and assasinate American citizens without and regardless of any CIA intelligence. Anyone else see this ? If this is true it would pretty much make any discussion of the Constitution superfluous.
  • Other Party
    Nebraska
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    Seems to be correct. The way it was explained on the evening news is this: if senior American leaders BELIEVE an American person to be a terror leader and an imminent danger they can target you. The key word here if BELIEVE. No proof required, they just decide to be judge, jury, and executioner and KABOOM you are dead.

    Constitution? They don't need no constitition! Rules of law? What for? Justice? They don't need no stinking justice!

    Time to build that bomb shelter that I've been putting off.
  • Independent
    Ft.myers, FL
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    "left/jamesn" yes I saw that too. Like I said under the subject of "drones" is this new reality related to everyone can be a target if they feel you are "against" them? where does this end? Also see the "cyber" piece of "schmidt" and then put all pieces together,what is then the picture? Now I understand the NRA statement: We should be able to defend ourselves against the government!! ( Not that I agree; but it may come to that in the future.) We are already trying to police the whole world, so now it is also our turn to be policed as well. May be I should start looking for an underground house in China!! (only the Chinese language is a pain and I do not eat cats or monkeys either)
  • Center Left
    Independent
    Central, FL
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    Drones, drones, drones...... I saw a story on the national news tonight that mentioned drones. It was talking about increased domestic usage for good things like a farmer inspecting his crops. But also surveillance use. Many people are against it and many states are working on legislation to eliminate drones from being used for surveillance.