Antonin Scalia

Is the Constitution Living, Dead, or in a Persistent Vegetative State?

|

In a column The Washington Times ran this week, Paul Greenberg contrasts his preference for a "living Constitution" with what he characterizes as Antonin Scalia's inflexible, "literal-minded" approach to interpretation. "The logical opposite of a living Constitution is a dead one," Greenberg writes. "Isn't it the genius of the Constitution that its principles are broad enough to meet the demands of changing times?…[The Framers] weren't laying down the law for the future; they understood the future would make its own law. They sought to build a framework within which change could safely take place, a flexible framework–not a straitjacket."

Leaving aside the question of whether Scalia practices what he preaches (a subject Cathy Young addressed in Reason last year), along with the intemperate remark that set Greenberg off (Scalia said "you would have to be an idiot" to believe in a Constitution whose meaning changes over time), Greenberg's flexibility worries me more that Scalia's (alleged) rigidity. There's a difference between applying general principles to new circumstances and discarding the principles because they seem outmoded. It's the difference between deciding that the First Amendment applies to television or the Internet and deciding that freedom of speech is too dangerous to tolerate during the life-and-death struggle against terrorism. It's a difference Greenberg does not seem to acknowledge:

Quite aside from how the Constitution has been changed by explicit amendment, many of its provisions have been changed and changed back again by judicial interpretation.

See the changing history of constitutional concepts like the general welfare, the supreme law of the land, the necessary and proper powers of government, due process, ex post facto laws, the right of contract, even habeas corpus. Pick your favorite. How they are applied depends on which court applies them in response to which changing circumstance.

Greenberg seems to be saying the Constitution means whatever the Supreme Court says it does, in which case it makes no sense to criticize a particular decision (say, Dred Scott or Plessy v. Ferguson) for being contrary to the Framers' intent or the plain meaning of the text. But to be worth anything, a constitution has to be rigid in the sense that it stops politicians from doing whatever they think the circumstances demand. If, as Greenberg appears to argue, the Constitution can be re-interpreted at will, what's the point of having one?

Although I am by no means a fan of all his opinions (his concurrence in last year's medical marijuana decision, for example, was a striking betrayal of the federalism he supposedly supports), Scalia seems to understand that interpreting the Constitution requires flexibility in certain respects and rigidity in others. He was flexible enough to conclude that flag burning is a form of political speech that ought to be protected by the First Amendment. But he was rigid enough to insist that the president, even in the midst of a "war on terror," may not detain a U.S. citizen indefinitely without trial unless Congress authorizes such detention by suspending the writ of habeas corpus in response to invasion or insurrection. While a more literal-minded jurist such as Robert Bork might have rejected the equation between flag burning and speech, both conclusions were solidly grounded in the text and intent of the Constitution. I'm more comfortable with a justice who at least fitfully applies principles than with one who avowedly makes it up as he goes along, even if the latter justice sometimes reaches libertarian conclusions.

It is hard for an intellectually honest person, even one who opposes legal restrictions on abortion and sex, to read Roe v. Wade or Lawrence v. Texas without shaking his head. (I realize there may be more credible ways to reach the same results, such as arguments based on the Ninth Amendment, but these also strike me as post hoc justifications for predetermined conclusions. If the Ninth Amendment was meant to prevent state bans on abortion and sodomy, why didn't anyone realize that until recently?) Although I was called a "faux libertarian" in another thread for failing to perceive a constitutional right to abortion, I do not dismiss out of hand the argument that we should take whatever freedom-friendly results we can get from the Supreme Court, regardless of how constitutionally sound the reasoning behind them is. But it seems to me this approach undermines respect for the Constitution and makes it harder to claim its safeguards even when they are clearly tied to its text, intent, and history.

If so, the approach (ostensibly) favored by Scalia (or Clarence Thomas) may give us more freedom and a less intrusive government than the one advocated by Greenberg or Stephen Breyer. More generally (and less realistically), I'm convinced that an honest, consistent attempt to apply the Constitution rather than twist it to fit one's policy preferences would, on balance, be a boon to liberty, even if it allowed some bad state laws to remain on the books. If the price of, say, restoring limits to the federal government's Commerce Clause powers is an abortion ban in South Dakota, that's a tradeoff I'm willing to make.

NEXT: This is Mrs. Bencours, one of my patients. She thinks she's a sheep.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Jacob Sullum,

    Scalia has written a number of articles on his judicial philosophy. I suggest you start there.

  2. Having students read the Constitution is one thing, teaching the philosophy behind it is quite another. Philosophy is rarely taught in our schools, leading to all sorts of “interpretations” of the Constitution by the citizenry. An uninformed, ignorant citizenry is more dangerous than an activist court in my opinion.

  3. Jacob Sullum,

    …I’m convinced that an honest, consistent attempt to apply the Constitution rather than twist it to fit one’s policy preferences would…

    This is Scalia’s “lesser evil” argument, but Scalia isn’t particularly consistent in holding to that.

  4. Bravo Mr. Sullum! I am often left scractching my head when I hear two sides of a particular Issue arguing over how SCOTUS should decide a case for which it seems constitutionally evident that they have no ground on which to stand. That is to say that they shouldn’t even consider the case on it merit or lack there of. I’m no rabid ProLifer, nor do I think abortions should be advocated, but either way, the leap from Griswold to Roe to a constituionally guaranteed right to abortions never was clear to me… ever. I tend to agree more with Scalia or at least to the extent that he disagrees with Greenberg.

  5. Flexibility when it comes to areas where the Constitution isn’t clear or where technology has introduced some uncertainties is one thing; allowing judges (or any other government actor) to rewrite the Constitution because “times are different” is another. We have a means for amending the Constitution, a means that we’ve used a number of times.

    Limited government is tougher without a written constitution. It can be done (like in the U.K.), but I think our liberties are better protected under our system. Or the system we had, anyway. The Constitution has been interpreted down to the point that it restricts very little any more.

  6. “Greenberg seems to be saying the Constitution means whatever the Supreme Court says it does…”

    He doesn’t seem to be saying that at all. Twisting Greenberg’s statement that there is “flexibility” in the Constitution into a statement that said “flexibility” is infinite is much more of a dishonest reading than any of the cases you bring up.

    “If the Ninth Amendment was meant to prevent state bans on abortion and sodomy, why didn’t anyone realize that until recently?” Because the reach of the Constitution’s protections exceed its grasp, as the framers intended it to. That’s the tough part about protecting freedom – stuff that people do that never would have occured to you, even stuff you find offensive, ends up being protected, too.

  7. Jacob,

    You mean you didn’t see the right to consequence-free sex written in invisible ink amidst the text of the Ninth?

  8. Amen to Ed on the ignorant citizen comment. This is often evident in the Jury system results. Although I disagree with the professional jury idea that was on here the other day. Maybe just a little common sense screening…

    Pro Lib, Very true regarding interpretation to the point of blurriness…

    I have kids in HS and they spend little time on the actual document and copious discussion on their instructor’s interpretations…

  9. joe,

    Bullshit. The “living Constitution” philosophy has been used far more often to expand govt power than liberty. The living Commerce Clause, for instance, has lived so well, and grown to such an extent, that it dwarfs the rest of the document. Not to mention the drug-war exceptions and the removal of eminent domain restrictions from the 4th. Ye shall know a tree by its fruit.

  10. crimethink,

    Can you explain what “consequence-free sex” sex is ?

  11. If the price of, say, restoring limits to the federal government’s Commerce Clause powers is an abortion ban in South Dakota, that’s a tradeoff I’m willing to make.

    That’s easy to say when you’re biologically incapable of becoming pregnant, and so will never be forced to carry a pregnancy to term.

  12. “The “living Constitution” philosophy has been used far more often to expand govt power than liberty.”

    Keep in mind, dear reader, this is from a person who has argued that both Lawrence and Roe were wrongly decided.

  13. Joe, Greenberg says “many of [the Constitution’s] provisions have been changed and changed back again by judicial interpretation”–i.e., judicial interpretation changes the provisions themselves. I think “the Constitution means whatever the Supreme Court says it does” is a fair reading of that description, although it may not be what Greenberg meant (which is why I said it was what he “seems to be saying”).

  14. SM,

    I’m referring to the so-called right to an abortion, which Jennifer et al finally admitted yesterday, is mainly geared to enable them to have sex without worrying that a birth control “accident” might have long-term consequences.

  15. joe, you’re not even trying to veil the ad hominems anymore, are you?

  16. If so, the approach (ostensibly) favored by Scalia (or Clarence Thomas) may give us more freedom and a less intrusive government than the one advocated by Greenberg or Stephen Breyer.

    It might, and yet, in reality, it doesn’t. How about them apples?

    Just because a judge has gotten very good at convincing himself and others that he is rigorously applying a jurisprudential program and not considering the consequences of his or her decisions does not mean that the judge is not considering the consequences of his decisions. It just means that the judge and/or his admirers are operating under a delusion.

    A judge whose consideration of text and precedent is self-consciously informed by a concern for the consequences of his or her decision may not be what you want, but it is the best you are going to get in the world we actually live in.

    Per Thomas Geoghegan, my favorite answer to the question of whether the Constitution contains a right to privacy: “It better.”

  17. I couldn’t agree with you more.

    Those ideas are too good to just be published in a blog!

  18. joe, don’t misunderstand my position. Generally, I think that government interference with personal liberties is a bad thing. I admit it comes down for me to accepting some sort of natural rights argument, which is hard to defend or articulate, but there you are. From my perspective, there was no reason to twist the Constitution for civil liberties purposes, because those liberties were already protected. Throwing out the 9th Amendment (which implies that many more liberties exist than those listed in the previous amendments) just makes matters worse.

    All of that said, fooling around too much with the meaning of the Constitution ends up trashing the limits on government that we set up in the first place. For every civil rights victory you care to list (and credit to “living constitution” doctrine), there is a pile of abuses that goes the other way. Expanding government power. Curtailing our liberties. Honestly, can anyone claim that an expansive reading of the Constitution hasn’t netted us a government that is more arbitrary, less unaccountable, and more dangerous than ever before? The door has been opened for much worse abuses than any Congress or president has yet dared attempt. Maybe things won’t go that direction, but I’d prefer a little more insurance. A strong Constitution would be a nice start.

  19. Good post Jacob. Scalia talks a good game, and so does Thomas. Sadly Scalia is too willing to abandon his philosophical underpinnings when they offend his conservative disposition. Thomas is better, but seems only to rise to inspiring heights when in decent.

    I so want to live under the limited government described in our constitution, but I don’t see how we can get there from here.

  20. “Is the Constitution Living, Dead, or in a Persistent Vegetative State?”

    I understand that Lawrence Tribe has a video of the Constitution’s eyes tracking the movement of a balloon, but Akhail Reed Amar has pointed out that Tribe recorded nearly four hours of non-responsiveness to get that footage. Samuel Alito says the debate can be resolved by letting a uniformed police officer shoot it in the head.

  21. This sentence indicates that Jacob is overthinking the issue:

    “Scalia seems to understand that interpreting the Constitution requires flexibility in certain respects and rigidity in others.”

    What Scalia understands is that he, Roberts, and Alito can and will come up with justification to dress up their authoritarian rulings without respect to any kind of coherent judicial philosophy. There is no consistency with regard to his approach to federalism if you try to follow his arguments; but if you look at the authoritarian results of his opinions (ignoring the meaningless verbiage) his approach is clear.

  22. crimethink,

    Actually, the right to an abortion doesn’t mean that sex has no consequences. So your argument blows a tire from the start.

  23. >>If the price of, say, restoring limits to the federal government’s Commerce Clause powers is an abortion ban in South Dakota, that’s a tradeoff I’m willing to make.

    >>That’s easy to say when you’re biologically incapable of becoming pregnant, and so will never be forced to carry a pregnancy to term.

    Looking at it that way, you are better off by restoring limits. This may result in an abortion ban in South Dakota, but it would prevent a nation-wide ban on abortion. Not just that, congress “could” also prevent you from leaving the country to acquire an abortion.

    So, would you prefer to drive to North Dakota, or get one in a back-alley?

  24. So, would you prefer to drive to North Dakota, or get one in a back-alley?

    Crossing state lines to get an abortion is a matter of interstate commerce, and as such would fall under Congress’ legitimate jurisdiction.

  25. “Is the Constitution Living, Dead, or in a Persistent Vegetative State?”

    I understand that Lawrence Tribe has a video of the Constitution’s eyes tracking the movement of a balloon, but Akhail Reed Amar has pointed out that Tribe recorded nearly four hours of non-responsiveness to get that footage. Samuel Alito says the debate can be resolved by letting a uniformed police officer shoot it in the head.

    And if no one mourns or gives it a funeral, it obviously was never a Constitution in the first place.

  26. Pop quiz
    Americans apparently know more about “The Simpsons” than about the First Amendment.
    Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey.
    The study by the new McCormick Tribune Freedom Museum in Chicago found that 22 percent of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms, the Associated Press reports.
    Joe Madeira, director of exhibitions at the museum, said he was surprised by the results.
    “Part of the survey really shows there are misconceptions, and part of our mission is to clear up these misconceptions.”

    While the debate rages, the average Homer is having a Duffs at Moes, taking it easy. Just protect that 2nd Amendment. Like my bumper sticker says, it’s the one that makes all the others possible. You think Mr. Greenberg owns any guns?

  27. crimethink,

    Crossing state lines to get an abortion is a matter of interstate commerce, and as such would fall under Congress’ legitimate jurisdiction.

    So much for limits on the Commerce Clause.

  28. ?If the Ninth Amendment was meant to prevent state bans on abortion and sodomy, why didn’t anyone realize that until recently??

    Randy Barnett, who argued Raich before the Court, has presented much credible evidence that the original meaning of the 9th Amendment was the protection of unenumerated individual rights. For example, he has shown that Madison argued precisely that during the debates over Hamilton?s bank scheme. After the 14th Amendment was ratified, this protection held against the states as well. Barnett?s article ?The Ninth Amendment: It Means What It Says? is a good example of this argument. Sorry, I don?t know how to tag the link:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=789384

  29. I think we really need two constitutions. One for children and liberals to play with, and one for grownups.

  30. Crossing state lines to get an abortion is a matter of interstate commerce, and as such would fall under Congress’ legitimate jurisdiction.

    I can’t tell if you’re serious. The commerce takes place entirely within the state where the abortion takes place and the money changes hands. It’s the only reasonable definition.

    Only Congress would think otherwise. They probably also think that a North Dakota resident getting an abortion in North Dakota is engaged in interstate commerce because she is bidding up physician pricing, which affects people visiting from out-of-state.

  31. While I’m no fan of the Raich decision, didn’t Scalia decide as he did because California was trying to legalize reefer under the auspices of medicine, not criminal law? Medicine/drugs are traditionally the province of the federal government (FDA). I seem to recall Scalia implying that if California had straight decriminalized marijuana, they’d have had a stronger leg to stand on (the gerneal principle being to defer to states on criminal matters).

    If that’s the case, that case may not be the best to label as “a strinking betrayal of federalism” on AS’ part – Bush v. Gore beats it to a pulp.

  32. “The commerce takes place entirely within the state where the abortion takes place and the money changes hands. It’s the only reasonable definition. Only Congress would think otherwise.”

    Sorry, but SCOTUS agrees too – it upheld the constiutionality of the Mann Act (prohibiting interstate travel for purposes of prostitution) back in 1913 and hasn’t looked back.

  33. Windypundit, SCOTUS caved in to the commerce clause interpretation of a power mad congress eons ago. Well beyond the immediate transaction taking place. It was all for “good” causes though. You know, preventing discrimination in providing hotel rooms, uniform mudflaps, etc.

  34. Hakluyt / Windypundit,

    So federal laws against transporting minors across state lines in order to avoid child-protection laws are unconstitutional?

  35. crimethink,

    You treat the commerce clause as if it were a general police power clause when it suits your needs.

  36. Yeah, I know SCOTUS disagrees with me. It was cheap hyperbole.

    So federal laws against transporting minors across state lines in order to avoid child-protection laws are unconstitutional?

    I’m not quite sure what you mean. I don’t know how those laws work.

    If a man travels across state lines with an underage girl, and he has her parents’ permission to do so, and he has the girl’s permission, and in the state to which they travel she is not under age, and there is no other local state barrier to sexual relations (teacher-student, close relative), then I don’t see a legal problem if they have consensual sex.

    What situation are you thinking of?

  37. This is all water under the bridge. Wasn’t the idea at some point that resolving the text with a proposed law was to be done either by textual analysis or by amendment?

    I can’t even imagine a proposed law that would require a constitutional amendment in this climate. Clearly, the facts on the ground are that the document is absurdly flexible and that it does not serve as a check on anything.

    Constitutions are all doomed to this fate.

  38. Jason Ligon,

    Sadly I believe you are correct. If anything, we should be surprised at how long the Constitution actually did mean something.

  39. Jason Ligon,

    That’s what you get out of a text which contains a lot of general, ambigious language and a convention which kept at best spotty records of its proceedings (that weren’t themselves published until long after the deaths of all of the participants). A text which was ratified by state conventions which themselves kept both spotty records and were in general never in complete agreement about the nature of the entire document (which is why so many states sent back recommendations for changes to the text, recommendations that were never honored).

  40. I’m referring to the so-called right to an abortion, which Jennifer et al finally admitted yesterday, is mainly geared to enable them to have sex without worrying that a birth control “accident” might have long-term consequences.

    No I didn’t. My arguments boiled down to “I should not be forced against my will to have my body serve as a life-support system for something else.”

    It’s like I said yesterday, Crimethink–if you or someone else figures out a way to keep a one-day-old or one-month-old fetus alive outside of the mother’s body, then I’ll fully support a compromise law stating that when women get abortions, the fetuses must be removed intact and put into life-support systems. Just don’t expect the mothers to pay for this.

    I’m not required by law to donate bone marrow or a piece of my liver, even if I’m the only one with the right body chemistry to save the intended recipient. And I’m (fortunately) not required by law to have my body serve as an incubator (with all the permanent damage that could cause to my body). But I know you’d like to change that.

  41. I think a compelling argument could be made that we are no longer really governed by a written constitution but have stumbled into the Roman/British model. While our written constitution is part of the greater “American Constitution”, it is not the whole picture (which, of course, it wouldn’t be entirely even if it still governed) and is not necessarily authoritative. This isn’t all bad, as I said before, because the U.K. is a free and liberal nation without a written constitution, but we were better off the way things were, if you ask me.

    What’s also interesting is that not only has the Constitution become diminished in importance, we’ve also moved away in many respects from a common law country to something more akin to a civil code nation. Regulate and legislate everything, and there’s not much room for judge-made law. That’s ungood, in my book, because a judge might actually take into account the actual facts in the immediate case, rather than try to force every situation into a one-size-fits-all statute.

  42. [The Framers] weren’t laying down the law for the future; they understood the future would make its own law.

    OK, but what’s so wrong with actually making that new law – actually changing the text of the Constitution? You know, just as a formality?

    It’s one thing to say “Previous interpretations were wrong because of XYZ”; it’s quite another to say, “Well, times have changed, dude”. You can think about and criticize claims justified by the first method, but you can only agree or disagree with claims justified by the second.

  43. In all seriousness, any diehard constitutionalists like myself probably need to seriously consider whether the following proposition is true: the Constitution doesn’t matter, and all constitutional issues are really decided in service of other goals – thus, stop worrying about doing it right and just pimp your own goals.

  44. Why does it have to be an either or thing?

    I personally would be very happy with a very strict interpretation on the limits of government, and a very flexible and wide reading of the rights of the citizenry. We are a nation whose government is of, by and for the people, so I see no reason why the courts shouldn’t trend toward interpreting the Constitution in a way that favors the rights of the citizenry and limits the power of the government. So for me, interpreting the Constitution as guaranteeing a right to privacy is good, and limiting the governments ability to regulate “commerce” also good. I don’t fully understand why it must be an either or. Why can’t we have both a right to privacy and a government with a severly limited realm to regulate/legislate?

    I won’t hold my breath, but since we are having this conversation its worth bringing up

  45. “If the price of, say, restoring limits to the federal government’s Commerce Clause powers is an abortion ban in South Dakota, that’s a tradeoff I’m willing to make.”

    That’s precisely why you’re a faux libertarian.

  46. I suppose this all goes to show that incorporating the Bill of Rights was a mistake. It really did end up suggesting that we only had the listed rights, which drove people seeking to expand those rights to find penumbras and other weird things. The bad thing about that is that the same analysis can be used to expand the “rights” of government.

    Of course, one problem I’ll mention in passing with any rights analysis is what are, exactly, rights? If you think there’s a right to a job, a right to healthcare, etc., then things get much more complicated. I think the only safe way to deal with all of this is to protect liberties–that is, freedom to do things or freedom from certain things being done to you–and not get into things we believe people should have. I’m not saying that government can’t be involved in healthcare, for instance, but it’s not a good idea to talk about people having a right to it. Constitutionally speaking, I mean. I’m not sure I’m making sense, so let someone without a migraine explain what I mean 🙁

  47. I’m not saying that government can’t be involved in healthcare, for instance, but it’s not a good idea to talk about people having a right to it.

    Couldn’t one make the argument that the right to life includes the right to have treatment for illness that may deprive you of life?

  48. I’m not unsympathetic to the underlying problem, but talking about such things as “rights” gets us into trouble. Unless we’re talking about my right to a Porsche. I can’t pursue happiness without one, you see 🙂 A “right” that requires other people to provide it (as opposed to enforcing or protecting it) may be problematic.

  49. I wouldn’t mind changing the Ninth Amendment, so that instead of rights not enumerated in the Constitution being “reserved to the states or the people,” it simply says the rights are “reserved for the people.” That way you won’t have all these state’s-rights arguments where “state’s right” is code for “let the states take rights away from certain citizens.”

    We’ve heard it all before. Texas should be allowed to imprison homosexuals–state’s rights! Southerners should be allowed to make human beings into slaves–state’s rights! Later, they should be allowed to mandate racial discrimination by law–state’s rights!

    Every time I hear “state’s rights” I know that certain “individual rights” are about to be compromised.

  50. Eric .5:

    “the Constitution doesn’t matter, and all constitutional issues are really decided in service of other goals – thus, stop worrying about doing it right and just pimp your own goals.”

    This is where I have arrived after many years of pining for limited interpretation without amendment. It occurred to me that all constitutions are doomed because the very first casualty of populism will always be meta principles that inhibit popular ideas from becoming law.

    “We want free healthcare!”

    “Er, this piece of paper says you have to get 2/3 to agree with you, plus ratification.”

    “We want free healthcare! You know, Right to Life and Interstate Commerce, and all that.”

    “Oh, okay. Since you said the magic words, now you only need a congressional majority.”

    “Groovy.”

  51. Eric .5:

    “the Constitution doesn’t matter, and all constitutional issues are really decided in service of other goals – thus, stop worrying about doing it right and just pimp your own goals.”

    This is where I have arrived after many years of pining for limited interpretation without amendment. It occurred to me that all constitutions are doomed because the very first casualty of populism will always be meta principles that inhibit popular ideas from becoming law.

    “We want free healthcare!”

    “Er, this piece of paper says you have to get 2/3 to agree with you, plus ratification.”

    “We want free healthcare! You know, Right to Life and Interstate Commerce, and all that.”

    “Oh, okay. Since you said the magic words, now you only need a congressional majority.”

    “Groovy.”

  52. I view “states rights” as valid in the context of being a check on federal power. Such claims are less valid when they are assertions of rights to oppress people. For instance, if a state demanded that everyone convert, say, to Scientology, I’d be okay with the federal government telling the state that that violated its citizens’ rights.

  53. Jennifer,

    What about when states’ rights is used to argue for a state law which permits euthanasia or medical marijuana use? Or how about states’ rights when it is used to justify laws or court rulings which overturn adult consensual sodomy laws? Or how about states’ rights when it is used to justify broader free speech rights, including the speech right of the the Oregon constitution which includes the right to express ones self as an exotic dancer? The issue isn’t remotely as black and white as your portray it.

  54. Limited government is tougher without a written constitution. It can be done (like in the U.K.)

    I think I just snorted my coffee. Blair is trying to ditch the whole parliament thing as too much trouble.

  55. bubba, maybe they’ll blow it, but I don’t think I’m ready to call the U.K. a totalitarian dictatorship just yet. If Blair does get rid of Parliament, then we can talk 🙂

  56. The issue isn’t remotely as black and white as your portray it.

    Sure it is. Jennifer has rights. Babies don’t.

  57. Jennifer,

    Or how about the issue of women’s suffrage, which started not on the national level, but in the states, starting with Wyoming in 1869 (and followed by about ten other states before the Ninteenth Amendment in 1920).

  58. Sure it is. Jennifer has rights. Babies don’t.

    Sure they do. I just don’t consider a brainless, microscopic lump of fertilized cells to be a “baby”.

  59. Jennifer,

    Of course we have to keep in mind that it was 2/3rds of the states that had to ratify the 19th Amendment as well. The idea that state power, etc. is always used for ill is in other words laughable.

  60. A “right” that requires other people to provide it (as opposed to enforcing or protecting it) may be problematic.

    Not necessarily–people accused of a crime have the right to an attorney, even if they can’t afford it. This is a right provided, not enforced or protected.

  61. True enough. There are exceptions to any rule, I suppose. I’m tempted to argue that PDs shouldn’t be handed out as a right, but the bleak truth is that you’d be in serious trouble without any representation.

  62. I suppose this all goes to show that incorporating the Bill of Rights was a mistake. It really did end up suggesting that we only had the listed rights…

    I know what you mean, and I know this was a concern of the founders, but I think the government would have grown beyond its original powers anyway. And when that happened, do you think we’d have free speech if it wasn’t specifically mentioned in the Bill of Rights? I don’t.

  63. I’m tempted to argue that PDs shouldn’t be handed out as a right, but the bleak truth is that you’d be in serious trouble without any representation.

    Well, in line with another post, one could argue that PD’s give the accused a better means of defending their liberty, and so are a reasonable exception.

  64. You could also say that a public defender is an additional check on power: It’s a means by which thet state tries to ensure that its allegations against a citizen are adequately scrutinized.

  65. Right, Jammer, I agree. The fact is that we impose this crazy, convoluted system on defendants, so it’s hard to argue that they can get “justice” without effective representation. I suppose a less complicated system wouldn’t require PDs, but who knows? We have to work with what we have, I suppose.

    Windypundit, that’s the $1,776.00 question. I think a Bill-of-Rights-less Constitution would’ve upped the ante for everyone (but the government) to want the limits to stay in place. The only way to ensure that our rights would be protected would be to keep all of those limits and checks in place. In theory, that is.

  66. thoreau, that’s the only way most PDs can deal with defending people who are, for the most part, scum of the earth. They aren’t defending criminals, they’re standing between the state and the people. And there’s a lot of truth to that philosophy.

  67. Jennifer,

    The 9th Amendment does not mention states. Here is the full text:

    The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

  68. dw’s right. I should’ve said something earlier. I think Jennifer’s thinking of the Tenth Amendment:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Note also the difference between the 9th’s reference to rights and the 10th’s reference to powers. Also note how obvious it is that the 9th is a critically important amendment and that only government officials would say otherwise. Mr. Bork? Here’s your danged inkblot (smack!).

  69. Ninth, tenth–one of those amendments. Yeah.

  70. “I think a Bill-of-Rights-less Constitution would’ve upped the ante for everyone (but the government) to want the limits to stay in place.”

    PL:

    My guess is that you have this backward. It is not an observable feature of history that the vague is interpreted favorably for us.

  71. I guess what I mean is that “we the people” would have been more concerned about the government growing beyond its limits if those limits were all that were protecting our liberties. Probably not. We’re just frogs getting boiled after all.

    Of course, one point in favor of what you’re saying is what happened to the 9th Amendment. It preserves all those other liberties, pretty friggin’ explicitly. So sorry, citizen, what 9th Amendment is that?

  72. Hak,

    “Of course we have to keep in mind that it was 2/3rds of the states that had to ratify the 19th Amendment as well.”

    I think you mean three-fourths of the states. That’s the proportion required to ratify a constitutional amendment. Two-thirds of the states is what you need in order to call a constitutional convention, whose proposals would still need to be ratified by three-fourths of the states. It’s an understandable mistake on your part, and don’t worry, I’m not going to harp incessantly on your error, or make condescending remarks suggesting that your error proves that you lack my scintillating intelligence. 🙂

    From Greenberg’s article:

    “Those who refer to the Borkians/Scalians as originalists do the original Founders an injustice; that generation framed a Constitution meant to anticipate change, not stifle it. They weren’t laying down the law for the future; they understood the future would make its own law. They sought to build a framework within which change could safely take place, a flexible framework — not a straitjacket.”

    The Founders provided an amendment process precisely in order to meet the need for change which Greenberg talks about. This amendment process was able to bring several fundamental changes — including equal voting rights for women and popular election of the Senate (the latter may not have been a *good* change, but it was assuredly a radical change).

    Who, then, is advocating a “straitjacket”? Not the originalists — they fully agree that the amendment procedure allows the future to “make its own law,” so long as there’s sufficient support (as opposed to a narrow majority).

    Straw-man arguments like Greenberg’s need to be rebutted every time they crop up.

  73. Jacob:

    I’m convinced that an honest, consistent attempt to apply the Constitution rather than twist it to fit one’s policy preferences would, on balance, be a boon to liberty

    For sure! A constructionist perspective based on original intent is bound to yield more libertarian government since limiting government power and protecting individual prerogative from the federal government was clearly the main purpose of the founders of our republic.

    Bonar Law at 08:31 PM,

    Excellant points. I especially appreaciaate:

    The Founders provided an amendment process precisely in order to meet the need for change which Greenberg talks about. This amendment process was able to bring several fundamental changes…Who, then, is advocating a “straitjacket”? Not the originalists — they fully agree that the amendment procedure allows the future to “make its own law,” so long as there’s sufficient support (as opposed to a narrow majority). Straw-man arguments like Greenberg’s need to be rebutted every time they crop up.

  74. Bonar Law,

    The issue is whether every change in human society must be dealt with a constitutional amendment if the government is to address it.

  75. Bonar Law,

    BTW, Scalia has no problem using long-past the founding tradition as a gloss on the Constitution.

  76. Bonar Law,

    By way of illustration, consider the Second Amendment. What does the arms right refer to? In the 18th century the right referred not to artillery, but to muskets and similar arms. How then do we apply to such a doctrine to the change in arms types we’ve witnessed over the past two centuries and a quarter? Clearly we apply the original doctrine to today’s sort of weaponry. Thus it is reasonable to say that the Constitution anticipates change even if we do not consider the amendment process.

  77. What does the arms right refer to? In the 18th century the right referred not to artillery, but to muskets and similar arms.

    I find that interesting, since I have gotten involved in arguments over this.

    I very early formed the idea that “arms” meant “small arms” but had no real basis for it. I used that to take the position that the state could, in fact, regulate the possossion of things like artillery pieces, battleships and strategic bombers.

    Is there somewhere to find info on this?

  78. “The issue is whether every change in human society must be dealt with a constitutional amendment if the government is to address it.”

    This was intended as slight hyperbole, I think, but somehow I find the idea incredibly appealing …

  79. Hak,

    In my dreams, the idea would be that amendment would be required only for an attempt to narrow the broadest possible interpretation. If you mean I can’t have VX, pass an amendment. It should be easy.

  80. If you read Lawrence, Kennedy talks about a need for liberty, not much about privacy, and while the constition does not talk about privacy and the constition DOES talk about liberty.

  81. The issue is whether every change in human society must be dealt with a constitutional amendment if the government is to address it.

    Not at all. Changes that are within the enumerated powers of government to address, it can address without an amendment.

    Changes that are not within those enumerated powers should be subject to government control only with the consent of the governed, as expressed through the amendment process.

    Besides, I think there have been very few “changes in society” that are would actually require amendment of the Constitution. Human nature hasn’t changed in the last two centuries, and its expression in society hasn’t changed much either.

Please to post comments

Comments are closed.