Night of the Living Constitution

|

Sheldon Richman, editor of the Freeman, explains that constitutionalists who wish to preserve liberty by hewing closely to an imagined original meaning of the U.S. Constitution have to face it: the Constitution is and must be living–which paradoxically explains why it is, in so many ways important to those dedicated to limited government, dead. An excerpt:

It's not as if the "proper" interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it. At every point people will be making the interpretive decisions, including the decision over which interpretation is right….a particular interpretation of the Constitution in reality means that people act in particular ways to achieve particular values in particular situations. There's no automatic pilot.

…..To change the Constitution in a pro-freedom direction, we first have to change the (tacit) constitution, that is, people's ideological outlook. If there are lines that government won't cross today (and these are becoming fewer), it is because enough people would find such action intolerable.

NEXT: Raul's Back, Chavez Gets Hugged; Great Movie Plot Ankled: Who was Stealing the Great Commies of Earth?

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. “To change the Constitution in a pro-freedom direction, we first have to change the (tacit) constitution, that is, people’s ideological outlook.”

    And if we don’t and people’s attitudes go against freedom, what protects us then? If you throw out any organic meaning to the constitution and make it a “living document”, there is nothing to stop it from living right over the top of you. We have already decided that the value of fairness means more than the explicit gaurentees of equal protection and due process at least when it comes to white males. The living constitution has also meant that fair and money free elections are more important the political speech.

  2. It’s not as if the “proper” interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it.

    Sure it can — that was the whole point of Barnett’s book (i.e., the presumption of liberty), let alone John Stuart Mill’s Harm Principle.

  3. “Let the guarantee of free speech be in every man’s determination to use it, and we shall have no need of paper declarations.” – Voltairine de Cleyre

  4. Yeah, OK I understand that the powers that be will do whatever the fuck they want, and little ol’ me can’t do diddily-squat about it. Still, it would be nice if (any of?) the rulings of the SCOTUS in say the past half century or more, could be even loosely reconciled with the ninth and tenth amendments.

  5. This always seemed to be self evident to me, that the Consitution has always been a living (and in some ways, dead) document. Really has been from the beginning. One could argue to the contrary all one wishes, but there’s 200 years of precedence suggesting a living document. Draw whatever conclusions you may, but I don’t think it can be really denied.

  6. We have already decided that the value of fairness means more than the explicit gaurentees of equal protection and due process at least when it comes to white males.

    John, you post such interesting comments. Please tell us more.

  7. White males are the biggest victims in America?

  8. There’s no good reason why the constitituon can’t be put into an algorithm that a computer can use to determine the answers to legal questions, thus rendering nearly all judges and trials irrelevant. But the whole point of a living document is to allow interpretations such that some people gain certain advantages while others suffer disadvantages. And to create jobs for lawyers.

  9. It’s not as if the “proper” interpretation (whatever that may be) can be hardwired somehow

    Funny, I thought that’s what having a written Constitution written, really, in pretty plain English was supposed to be all about.

    Under Richman’s approach, I don’t think there’s any point in having a written Constitution at all.

  10. “Still, it would be nice if (any of?) the rulings of the SCOTUS in say the past half century or more, could be even loosely reconciled with the ninth and tenth amendments.”

    But Warren, it is a living Constitution, that means people can decide that it means something else to fit the changing circumstances and the changing society. So, if society turns into a bunch of government worshiping nannystaters, you are basically screwed and the Constitution isn’t going to save you. If anything, it will hurt you because the nanny staters will read it to require whatever they want.

    I blame the whole living Constitution on the South. The real overreach came not so much with the New Deal, but with the civil rights cases in the 1960s and 1970s, starting most notoriously with Brown. Thanks to those cases, we now have judges running schools and the Congress running our businesses.

    That said, all of those efforts were absolutely necessary. Jim Crow could not go on as it was. Something had to be done about segregation. That something should have been State and Local elected governments realizing the right thing to do and ending it. Unfortunately, the ignorant racist south, who didn’t quite get the idea that they had lost the civil war, wouldn’t do that. There was no way Jim Crow was going to end in the South without there being massive coercion and overreach by the courts and the federal government. Jim Crow had to end, so that is what happened. We are left now with the mixed legacy of the civil rights era. Yes, Jim Crow has ended and our society is about a thousand times more just than it was. At the same time, we had to completely throw ideas like States’ rights and any form of limited government over the side to get here. Thank you so much Dixieland.

  11. I blame the whole living Constitution on the South.

    Except that de facto segregation was common up north as well.

  12. Pray to the server gods to let this one through. Agree with Richman almost down the line.

    1) No language is actually as clear as we want to think it is.

    2) Constitutions are politically arrived at documents, so it is peculiar to try to pin down exactly what everyone thought it meant at the time of the ratification.

    3) The very first casualty of crisis is a paper prohibition against the government acting “in the public interest”. Then you have precedent. I know there is an amendment process, but expect the interpretive process to be pushed to the limit if popular will dissents from constitutionally authorized actions.

    The benefits of a constitution are mostly structural. It is hard to argue that you need to dissolve the house of representatives, for example. You won’t get a majority behind something so broad. Hopefully, the laughable notion of enumerated powers is made somewhat reality by virtue of competing interests.

    The other benefit is that it sets a traditional way of looking at things for most people. You are basically saying that absent a compelling reason, Americans will default to general constitutional principles. Sadly, a compelling reason is not what we’d like. Usually it involves the continuation or starting up of transfer payments.

  13. Mr. Richman observes that an ideological revolution is necessary before a political revolution is possible. Yet many LPers think all it will take is more content-free door knocking by its candidates. The LP should do what it can to promote the ideological revolution so that libertarianism becomes influential if even under another party’s banner.

  14. Although original intent is more difficult to pin down than we would like it to be, the statists have used the idea of a living constitution to justify foisating a whole ton of liberty busting ideas on the populace. So in that respect, the term comes loaded with ideological baggage that is relatively unpleasant.

    I opt for a stricter interpretation rather than a looser one because much of the language is very clear (Congress Shall Make No Law…….). But I have also argued, particularly when our friends at Reason insist that even the Constitution says that we have no intellectualy property rights, that sometimes moral doesn’t equal constitutional.

    Therefore, I am solidly on the fence.

  15. Jason Ligon,

    1) No language is actually as clear as we want to think it is.

    Language is generally clear enough that this excuse is rather hollow.

    2) Constitutions are politically arrived at documents, so it is peculiar to try to pin down exactly what everyone thought it meant at the time of the ratification.

    Why is that? From what I can tell, this is some sort of “intent” argument, and modern originalists aren’t generally involved in intent arguments.

    3) The very first casualty of crisis is a paper prohibition against the government acting “in the public interest”. Then you have precedent. I know there is an amendment process, but expect the interpretive process to be pushed to the limit if popular will dissents from constitutionally authorized actions.

    I think you can make the very same argument about most things libertarians adhere to. Should we abandon capitalism because lots of anti-capitalists may spring up in times of crisis?

    The benefits of a constitution are mostly structural. It is hard to argue that you need to dissolve the house of representatives, for example. You won’t get a majority behind something so broad. Hopefully, the laughable notion of enumerated powers is made somewhat reality by virtue of competing interests.

    It is hard to argue lots of things; which is why we have such a libertarian oriented approach to speech in the U.S.

    _____________________________

    We had a conversation about this issue at gyrlliade: http://grylliade.org/modules.php?name=Forums&file=viewtopic&t=1328&postdays=0&postorder=asc&start=0

  16. The Wine Commonsewer,

    We aren’t really interested in the original intent of the authors; we are interested in the original meaning of the words as understood by the citizens of the ratifying states.

  17. … says, “There’s no good reason why the constitituon can’t be put into an algorithm that a computer can use to determine the answers to legal questions, thus rendering nearly all judges and trials irrelevant.”

    The first amendment says (in part): “Congress shall make no law … abridging the freedom of speech, or of the press…”

    Oh Great and Mighty Computer: Does the Action 5 News Report at 6, which uses neither ink nor paper, qualify as “the press”? Do paintings, which have no vocal component to them, qualify as “speech”?

  18. The whole problem with originalism is that “original intent” becomes whatever an originalist judge wants it to mean at the moment. It’s still an act of interpretation, and enough bullshitting combined with enough obscure eighteenth-century secondary sources can come up with an “original intent” for anything. And so you get the very originalist Antonin Scalia voting with the majority in Raich, and the very originalist Clarence Thomas effectively arguing for a de facto monarchy in his Hamdan dissent. We’ve already got a living constitution; some judges are just being more honest about it than others.

  19. Oh Great and Mighty Computer: Does the Action 5 News Report at 6, which uses neither ink nor paper, qualify as “the press”? Do paintings, which have no vocal component to them, qualify as “speech”?

    And if you tell the JusticeTron 2000 that Harry Mudd is lying, it will explode.

  20. PL,

    We aren’t really interested in the original intent of the authors; we are interested in the original meaning of the words as understood by the citizens of the ratifying states.

    Actually, I think the original intent of the authors would roughly correlate to the meaning of the words as understood by the citizens of the ratifying states otherwise there would have been no ratification. I understand that there can be schmooze, but we are talking about a relatively small population that were relatively literate.

    I think yours is an important point but for my purposes I presume that the term original intent serves to cover both bases.

    Son

    Good point about speech. Although I don’t think such things should be illegal I am hard pressed to see how nude lap dancing in a bar is PROTECTED SPEECH. And if it actually is protected speech than why isn’t prostitution?

  21. I’ve always told soi-dissant “originalists” that it isn’t enough to quote The Federalist and expect everyone to accept Hamilton, Madison and Jay as the last word on what the Constitution was meant to be. Real originalism would look to the opinions of everyone who participated in the debate on ratification, from the 55 delegates in Philadelphia, to the legislative members and governors who sent them there, to their constituents, to the members of the ratifying conventions in the several states and their constituents, including all the objections of the anti-federalist writers of the day. Remember that the collection of newspaper columns known as The Federalist were written as answers to such objections. Similar arguments were going on in every tavern and meeting hall in the new country. If an anti-federalist claimed “the new constitution will do Bad Thing A” and a Federalist answered “No, it won’t, and here’s why” I think we moderns have every reason to object, when our current crop of pols try to impose Bad Thing A on us, that they are acting ultra vires. As pointed out by Richman, the debate forced the Feds to crumble on the question of a Bill of Rights. If the BoR desn’t prevent the parade of horribles envisioned by those who were skeptical about the Constitution, it is a dead letter.

    The overall point, that if freedom doesn’t live in people’s hearts, it will be dead in the law books, is a good one. Our founding documents can and should be used to educate people about their freedoms, though. Our civic culture used to do this, however imperfectly. I wouldn’t trust our present day publik skools to attempt a revival of that idea.

    One thing I do support is not falling for the trick of reading a clause written in 1789 by means of a definition of a word that didn’t become part of the English language until decades or a century later. That’s just not sporting.

    Kevin

  22. And if you tell the JusticeTron 2000 that Harry Mudd is lying, it will explode.

    And here I was worried nobody would get it if I called the computer Vaal. Next time, I’ll just let my geek flag fly.

  23. Oh Great and Mighty Computer: Does the Action 5 News Report at 6, which uses neither ink nor paper, qualify as “the press”?

    Yes, because the word “press” is not used to refer to a printing press, but rather to the institution commonly referred to (then and now) as “the press”. Just as

    Do paintings, which have no vocal component to them, qualify as “speech”?

    No, but that’s OK, because the federal government has no authority to regulate the content of paintings anyway.

    See, its really not that hard.

  24. Do paintings, which have no vocal component to them, qualify as “speech”?

    No, but that’s OK, because the federal government has no authority to regulate the content of paintings anyway.

    See, its really not that hard.

    Two things. What if a state or local government tries to regulate the content of a painting? Can the 1st Amendment of the federal Constitution be used for redress? And what if the painting is sold across state lines? Then it would qualify as “commerce…among the several states.” Why would focusing on the content of the painting necessarily fall outside the purview of what constitutes regulation?

  25. Boundaries to the “Freedoms” are difficult to assign since the founders had no way of foreseeing mass media and modern communications technology. But it doesn’t end with the First Amendment. If you pay a woman to have sex with you, you’re both committing a crime. If you pay a woman to have sex and videotape it, others can pay you for the right to view it. I guess it’s somehow a freedom of speech or press or even peaceful assembly (as in the case of Girls Gone Wild).

    Apparently consistency, not just with the framers intent but even with respect to other specific contemporary cases, isn’t the aim of the law. Sometimes it seems rather arbitrary…

  26. “John, you post such interesting comments. Please tell us more.”

    Carrick, the Supreme Court has said that it is okay for state funded institutions to descriminate against whites and asians (perhaps I should have stated when it comes to whites and asians rather than just white males) on basis of race alone in the name of “diversity”.

  27. I keep hearing people complain that the “living document” interpretation allows people to make up whatever interpretation they want for their politics.

    Can anyone think of an example of a “dead document” partisan who decided that the Constitution forbade a policy he supported? That sword cuts both ways.

  28. the Supreme Court has said that it is okay for state funded institutions to descriminate against whites and asians (perhaps I should have stated when it comes to whites and asians rather than just white males) on basis of race alone in the name of “diversity”.

    So the world is binary for you. Preferential treatment for one population is by definition discrimination against all other populations.

  29. Regarding the scare quotes . . .

    Is that you don’t believe diversity is a “real” factor or you don’t believe that it is a “valuable” factor in deciding admission policy?

  30. “Language is generally clear enough that this excuse is rather hollow.”

    Then why did several hundred Reason commenters haughtily declare, in the wake of Kelo, that the “plain language” of the Fifth Amendment required an interpretation of “public use” that has never been in effect, even in the months after the Bill of Rights was adopted, when the governors and legislatures that approved it were taking land?

  31. “See, it’s really not that hard.”

    Several thousand legal scholars, jurists, Presidents, and legislatures over the 200+ years – you know, people who understand the facts and issues a lot better than you, RC – would disagree.

    Ignorant people usually don’t understand the complexity of those things they are ignorant about.

    Ever see a rich chick call the mechanics stupid because they can’t fix the “simple” problem with her car fast enough?

  32. No joe, Kelo came down to the argument that the state can take your property for no other reason that someone else will redevelop it and pay higher property taxes.

    There isn’t a single chunk of land anywhere in the US that is safe under this definition public use.

  33. See, its really not that hard.

    Perfect, RC.

  34. Carrick,

    Preferential treatment BY THE STATE (that is the key to the issue) is discrimination.

    It ok for private individuals to have preferences. It is unacceptable for the state to do so.

  35. Carrick,

    The bottomline is that if you are an Asian or White it is harder to get into college given a similiar set of grades and test scores that it would be if you were black or hispanic or native American because colleges are allowed to limit the numbers of each race admitted. This is the same thing by the way that anti-semites did to Jews for years. We couldn’t have a college full of Jews afterall. Today, we descriminate against Asians because if we didn’t limit their numbers Berkley might be more full of Asians than it already is. If that is not descrimination on the basis of race, I would like to know what is.

  36. carrick, not to get dragged too far into the weeds, but you’ve misstated the holding in that case. Kelo came down to the question of whether the implementation of comprehensive plan, adopted by the legislature, is a public use of the land of the land which is to be used to implement that plan. That taxes were one of the goals is tangential – the public use in question was not the taxes payments, but the plan to foster development. You know, just the like justification for the Mill Acts – the taking fosters development in the region.

    I appreciate your comment for demonstrating both of the points I have to contribute this discussion – that “its” (sic) harder than some people like to think to interpret the Constitution; and that the policy position is prior to the Constitutional interpretation just as much for the “Dead Document” crowd as for the “living Constitution” partisans.

  37. R C Dean writes: “Funny, I thought that’s what having a written Constitution written, really, in pretty plain English was supposed to be all about.”

    Well, you can’t leave it that. How do you propose to hardwire the “correct interpretation”? We could make you the dictator, but that has two problems: you might see things differently next month, and eventually you’ll die. What do we do when these things happen? Really, folks, sentimental constitutional sloganeering is a poor substitute for political philosophy. As Lysander Spooner put it, either the Constitution authorized the government we have or it was powerless to prevent it. And you want to get back on that bus?

  38. Preferential treatment for one population is by definition discrimination against all other populations.

    That is correct, other than in an imaginary world where resources are limitless.

  39. How do you propose to hardwire the “correct interpretation”?

    Couldn’t that argument also imply that all legislative statutes are equally futile? Why bother to pass a law when its interpretation will be up to some judge who’ll interpret it in any infinite number of possible ways? And then the judicial ruling has to be enforced by the executive who will again have an infinite number of possibilities at its disposal. By this logic, nothing we write matters at all! In fact, what I’ve just written will be interpreted by you all in an infinite number of possible ways, so I probably shouldn’t have even bothered!

  40. Kelo came down to the question of whether the implementation of comprehensive plan, adopted by the legislature, is a public use of the land of the land which is to be used to implement that plan.

    I’ve parsed this a couple of times, and I still don’t quite get it.

    What right does the legislature have to plan the use of land that they do not own?

    Zoning ordinances at the local level place restrictions on how people use their property to prevent one property owner from infringing the rights of another property owner. These are basically a necessary evil.

    The Kelo plan took property from its rightful owners against their wishes so that the property could be developed by other non-state, private entities. Regardless of the pronouncements of the legislature, this is solely for the reason of “improving” the properties to generate more money that could be used by the legislature.

  41. Carrick, the government schools supported by tax dollars have an obligation to establish objective criteria for enrollment. Any admission standards that include race or ethnicity are by definition, racist.

    Joe, what makes it complex is people who have an over-riding need to micro-manage every aspect of our lives. Using RC’s point, when the government feels the need to define art it gets complex. I know what art I like, you know what art you like. We don’t need anyone to define it for us.

  42. First things first. Affirmative action as it has been practiced for the last 4 decades is evil and should be dismantled.

    Second, diversity really is a good thing particularly in a learning environment where everyone benefits not just those that got an extra boost to get into school.

    Third, school adminstrators should have a certain amount of leeway to make admissions decisions using a certain amount of subjective criteria. Otherwise, we would just use robots to sort applications.

    Finally, abuses of the use of subjective critieria can be limited through transparency in the decision making process and by making abusers personally liable for making bad decisions.

  43. given a similiar set of grades and test scores

    What exactly does a set of grades and test scores on a piece of paper tell you about the individual in front of you.

    Is the student from a poor household who managed a B grade average in a failing school system the same as a student from a wealthy househould who coasted to a B average in a private school?

    Which student is more likely to succeed at school? In life?

    Which student will improve the learning environment of the other students in the school?

    Should administrators be allowed to ask these questions? Or should they let a computer program sort applicants by grade point?

  44. given a similiar set of grades and test scores

    What exactly does a set of grades and test scores on a piece of paper tell you about the individual in front of you.

    Is the student from a poor household who managed a B grade average in a failing school system the same as a student from a wealthy househould who coasted to a B average in a private school?

    Which student is more likely to succeed at school? In life?

    Which student will improve the learning environment of the other students in the school?

    Should administrators be allowed to ask these questions? Or should they let a computer program sort applicants by grade point?

    By the way, I was talking about the poor white farm boy from Nebraska, not the poor black inner-city youth from Chicago.

  45. …..To change the Constitution in a pro-freedom direction, we first have to change the (tacit) constitution, that is, people’s ideological outlook.

    Right, which is precisely why the concept of a ‘living’ constitution simply boils down to the requirement that the Supreme Court maintain a ‘constituency’ and then it just becomes another political racket.

  46. fyuodor, please report to your nearest elite graduate school and collect your PhD in English Lit. You clearly understand Critical Theory, Deconstructionism and Postmodernism. The reader imposes her meaning on the text, right? 🙂

    I’m only half joking. Applying “theory” to the law gave us the Critical Legal Studies movement, which has caused all kinds of havoc.

    joe: Wasn’t the sleight-of-hand in Kelo that the Feds bought the precedents that allowed the states to replace the black letter of the Constitution – public use – with the far more slippery public purpose? With the combination of left-statists on the court who approve of local government having sweeping condemnation powers, and the right-statists who felt too constrained to second-guess the state legislatures, the position popular here was a goner.

    Judicial review should not be a one-way ratchet, only allowed to maintain and increase government power.

    Kevin

  47. Under Richman’s approach, I don’t think there’s any point in having a written Constitution at all.

    Expecting the government to operate in accordance with the Constitution is futile. It doesn’t matter what it says, as it will be ignored when people want to ignore it. Hell, I gave up on arguing that anything, no matter how egregious, was “unconstitutional” a while back – nobody much really cares.

    There’s no magic “obey the Constitution, dammit!” button we can push. Whatever we can do can be gotten around. The only hope is to actually convince people to support the various principles of freedom and limited government that were part of the basis of the Constitution.

    Naturally, this all means we’re well and truly fucked, but there you are.

  48. “There’s no magic “obey the Constitution, dammit!” button we can push.”

    True. The closest we can muster is something to use when it is obvious they will never listen, but that’s more a “trigger”, if you will…

  49. Proposal: The United States Constitution to be come the United States WikiTution

    We the people of the Unified States, in order to form a union, establish justice, insure domestic tranquility, provide for the common defense, daily stuff, promote better wages, and secure the blessings of liberty from disease, bad luck and rogue car accidents to ourselves and our posterity, do ordain and establish this Wikitution for the United States of ‘Murrica.

    Some excerpts already taking shape as posters across the world wide web make our new living Wikitution:

    Congress shall make no law respecting an establishment of the wrong religion, or prohibiting the free exercise thereof; or abridging the freedom of non-hateful speech, or of the licensed press; or the right of the people peaceably to assemble in predetermined areas, and to petition the government for a redress of grievances except where real property has duly been condemned for public purpose.

    A well regulated militia, being unnecessary to the security of a free state, the right of the people to keep and bear arms, shall be infringed.

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of the president, especially in cases arising in the land or naval forces, or in the media, when in actual service in time of public danger including any crisis of public health; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb unless the crime can be tried once at the state, and then, upon failure of such trial, be tried again at the Federal level; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of a democratic vote; nor shall private property be taken for public use, without a plan

    Come on everyone! Get yer edit on!

  50. And as we all know, broadcasting requires licensure which is a restriction of freedom which basically means Congress does not consider it “the press”. That was already decided as a matter of law sometime around the 1910’s. – “3 dot guy”

    Don’t tell that to Jesse Walker or Tom Hazlett. I don’t buy it, either.

    Early radio regulation had largely to do with maritime shipping.* Amateurs were licensed to keep them from interfering with distress calls on the high seas. The Navy was successful in closing down all private stations for the duration of WWI. Once peace broke out, the American Radio Relay League was able to lobby Congress to allow amateurs back on the air. Broadcasting was a 1920s phenomenon, and regulation of that started in the Coolidge administration. It was in Commerce Secy. Herbert Hoover’s bailiwick. The Federal Radio Commission (1927) was superceded by the FCC in 1934. Content regulation dates at least to the “Equal Time Rule” imposed in 1927.

    Kevin

    Radio Act of 1912 text @
    http://earlyradiohistory.us/1912act.htm

  51. RC Dean: “Funny, I thought that’s what having a written Constitution written, really, in pretty plain English was supposed to be all about.”

    It is the legal profession that requires a living constitution. If everything was written as clearly as a stop sign (no doubt a living word on a stick to them) they would have no job. That is also why you have so many feeding in the trough in DC. The must continue to write laws to create work. The more confusing the better.

    Also why you must have preachers, living bible.

    We are all to dumb to do much but pay taxes.

  52. Chief Justice Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.”

  53. For the ode-to-the-poor-white-man crowd.

    Any white man that complains about how discrimination is limiting his options in life is truly outta touch.

    Come on guys, you’re embarrassing us.

    If you can’t understand and take advantage of the very real and palpable advantages that come with your white-maleness, then you deserve to be kicked out of the tribe. It is easy when you try. You can even flaunt it without fear of retribution.

    Quit whining.

    A case study, the US Congress:

    Today, 85% of Congress is male and 15% is female.

    The Senate is 1% African American and the House is roughly 9.2% African American.

    Joseph Marion Hern?ndez was the first Hispanic in Congress. He was a Whig Party territorial representative for Florida in 1823. The first to represent a state, rather than a territory, was Romualdo Pacheco who represented California in 1877. Ileana Ros-Lehtinen was the first Hispanic woman in Congress and was elected in the 1980s. The Senate is 3% Hispanic and the House is approximately 5% Hispanic. The Congressional Hispanic Caucus[5] has 21 members.

    There are 4 Asians and Pacific Islanders in the US House and 2 in the Senate. As mentioned Dalip Singh Saund was the first Asian American in Congress. Daniel Inouye was the first Japanese American in the House and later the first in Senate. Patsy Mink was the first Asian American woman in Congress.

    Tom Cole is the only registered American Indian currently in the House.

    You can do your own comparisons with these groups in the general population. (Hint, Americans are about 51% female).

  54. If you can’t understand and take advantage of the very real and palpable advantages that come with your white-maleness, then you deserve to be kicked out of the tribe. It is easy when you try. You can even flaunt it without fear of retribution.

    Quit whining.

    I agree, I’ve been waiting for the benefits of white maleness to fall into my lap for years now– until I realized that I had to go and work for it. Previously, I thought that being white and male was enough. So I waited… and waited… and waited. Nothin. No cheque in the mailbox, no job waiting for me. If I don’t get off my ass soon, I’m afraid I’ll catch obesity.

  55. Yeah, and Pacheco was a stand up guy, too. He was also governor of Californicate for a while.

    When I lived in a crappy apartment in the barrio it didn’t matter an inch that the president and the Congress were overwhelminglyo white. That didn’t buy my sorry white ass a loaf of bread, a tank of gas, or put one thin dime toward the rent.

    And that’s what the bean counters don’t get. They confuse political privilege with the ordinary act of getting through life.

  56. Ok, guys. It’s not that I need constant affirmation- but I made the above WikiTution post which I thought was pretty damned funny. After no one even said “Bugger off!” I did a google search on a weird hunch and I came across this. I stared at it for several minutes wondering “what the sam hell?” thinking it was a joke. Then horror of horrors, the site is deadly serious. I mean, put aside the constant ‘Wiki’ irony that they had to close it off to free editing because it got crapped up with all the free editing. Just the idea ought to make you at least say “Hmm…”.

  57. kevrob,

    The Takings clause has been used to allow land to be taken on behalf of one private party, and given to another, to achieve a public purpose since 1789. Similar clauses in post-revolution state constitutions were used to allow those takings even earlier. Kelo is a really lousy example of a living Constitution interpretation, because there really isn’t that long a line from the black letter to the recent ruling. It is, however, an excellent example of people who don’t know what they’re talking about to throw out slogans.

    Also, the Supreme Court’s decision in Brown, that the govenrment is not allowed to use the schools to enforce segregation, is an example of judicial review limiting state power. Another example is Miranda.

    TWC, explaining differences in political philosophy to your opponents having character flaws that you lack is juvenile.

    fyodor, recognizing that a judge guess at what the founders were thinking 200 years after the fact is NOT the sole method of understanding the Constitution is not the same thing as asserting that there can be an infinite number of equally valid interpretations. It is possible for their to be standards beyond the one you like.

    Just as side note about the affirmative action debate – a “poor white farmboy from Nebraska” would leave tire tracks on the back of a middle class kid from Long Island if they submitted identical applications to an admission’s office. Geographic diversity is very much sought after at colleges, as much as ethnic and economic diversity. Particularly if the student in question is from an area – nationall or internationally – that has historically been underrepresented in colleges and otherwise marginalized. If your poor hayseed has decent grades, he will be a sought after commodity in schools up and down the east coast. Which is where all the good schools are anyway. 😉

  58. No one cares to take a whack at my question at 2:18?

    In response to the charge by the origninalists that Living Constitution adherents are merely hiding behind a pseudo-theory in order to produce the policy outcomes they want, I asked the following:

    “Can anyone think of an example of a “dead document” partisan who decided that the Constitution forbade a policy he supported?”

    Anyone? Anyone? Bueller?

  59. joe:

    OK, there were long-standing precedents supporting the majority opinion in Kelo. That just means that the mistakes were made a long time ago, and the current court, more in love with stare decisis than with the actual Constitution, didn’t want to buck them. That doesn’t mean that those precedents were right when first decided, or should have applied to the case under review. There’s a hell of a big difference between “a farming community needs a water-powered mill” circa 1800, before steam or electricity was practical, or “the nation needs railroads” circa 1850 and “Pfizer wants a new headquarters” in the 21st century.

    It still remains that the court in Kelo chewed over public purpose, which is not in the Constitution, pretty good, rather than dealing with public use.

    As for the living/dead dichotomy and policy, I know that I oppose the death penalty on policy grounds, but realize that the Constitution explicitly mentions both “capital crimes” and the taking of life under due process of law. A death penalty clearly can be constitutional, speaking generally, even if it can be limited, as the courts have done. (Executions can’t be cruel or unusual, no snuffing mental defectives or kids, etc.) I imagine there is a judge or two who agrees with me on this.

    Several thousand legal scholars, jurists, Presidents, and legislatures over the 200+ years – you know, people who understand the facts and issues a lot better than you, RC – would disagree.

    Ah, the old argument from authority. A classic.

    Kevin

  60. kevrob,

    Not, not “longstanding precedents.” The doctrine that people are claiming is so radically at odds with the “plain language” – that land can be taken and given to a private party to own, and to develop and operate private sector uses – was the doctrine that was in place at the time the Fifth Amendment was written. The people ratifying it, who went home and became governors and legislators and took property didn’t consider such takings to violate what they wrote. There’s some original intent right there!

    This is not a case of an old misinterpretation, but of the original interpretation. Which, if you want to use the Fifth Amendment to ban these kind of taknings, requires a Living Constitution argument. Clarence Thomas stepped right up to the line of making one in his Kelo dissent, pointing out the different role corporations played in 18th vs. 21st century society, but wouldn’t take the plungs.

    “There’s a hell of a big difference between “a farming community needs a water-powered mill” circa 1800, before steam or electricity was practical, or “the nation needs railroads” circa 1850 and “Pfizer wants a new headquarters” in the 21st century.” Sounds like a judgement call. Were a judge to invalidate a taking on those grounds, he would be applying the Constitution in a “living document” manner.

    BTW, New London didn’t take land for Pfizer’s headquarters. Yet another strangely broadly held misconception about the case among Reason’s readers.

    Also, you don’t understand what the “appeal to authority” fallacy is if you’re invoking it there. I’m not making an affirmative statement and backing it up with the authorities’ agreement, but rebutting an affirmative statement to point out that existence of an ongoing debate.

  61. There’s some original intent right there! – joe

    I may not have been clear. I find original intent useful only after dealing with the plain meaning of the Constitution’s text. If it helps to shed light on the accepted meaning of a clause at the time of its ratification, that’s to the good. If people try to use it to trump that meaning, not so much.

    A fallacy is still a fallacy if used in rebuttal.

    Kevin

  62. “Bork and Me: Constitution Necromancers.”

  63. Kevin,

    Apparently, the meaning of that passage is so “plain” that you thought it forbade something that the very people who adopted it didn’t think it meant.

    Maybe not so plain after all? Maybe using your own perception of what a certain phrase JUST HAS TO MEAN, because it’s so totally plain, isn’t a very reliable method?

    Maybe you are bringing your own beliefs, perceptions, and ideology to your reading? How else to explain the fact that the very plain meaning of the Constitution isn’t, in fact, what the people who wrote it meant?

  64. No one cares to take a whack at my question at 2:18?

    I’m all about whackin’. Sorry, I didn’t read the whole thread.

    I keep hearing people complain that the “living document” interpretation allows people to make up whatever interpretation they want for their politics.

    Well, no, it doesn’t allow people to make up whatever interpretation they want, it allows five justices to make up whatever interpretation they want for their politics.

    What scared so-called progressives is when the sun began to set on the Warren court, they realized that a ‘wild, living constitution’ suddenly didn’t seem so appealing.

    I know there are some arguments that when stretched make a “living constitution” (wikitution) seem relatively appealing. There are other arguments that can make a textualist constitution unappealing.

    Really though, for liberty, I find very little in the text of the constitution unappealing. But that’s just my opinion. However, I think that both camps can be bridged with some basic guidelines.

    Ultimately, I see the court as delivering two types of opinions:

    1. Liberal (expanded) opinions which stretch the meaning of the text.

    2. Conservative opinions which try to hold closely to the framers intent.

    The fact of the matter is, that on occasion, rulings of the first type are going to happen. So the guideline should be that if a stretching of the textual meaning is going to take place, it should be in the direction of increased liberty (roe v. wade) instead of in the direction of decreased liberty (Kelo).

    Because constitutional opinions are rarely reversed because of stare decisis then any ruling which weakens personal liberty should be considered with great skepticism. In fact, it has most often been the conservative judges who have damaged liberty by issuing liberal opinions (Raich).

  65. “A fallacy is still a fallacy if used in rebuttal.”

    This particular fallacy requires a definitive statement of fact (A is B), backed up with the agreement of an authority (A is B because C says so).

    I didn’t make a definitive statement of fact ( such as A is not B), but pointed out that many disagree with that statement of fact. Since the statement of fact in question asserted the simplicity of interpretting the Constitution, I presented evidence that it is not so simple – the existence of a large body of experts who’ve found it difficult.

    Interpretting the Constitution isn’t complex because the authorities say so; but that so many authorities disagree on how to interpret it, and have committed so much effort to interpret it, is evidence of the difficulty of the endevor.

    Which, by the way, is a point that your glib invocation of freshman Intro to Logic terminology completely fails to address.

  66. joe, I’ll throw out one: I think Roe v. Wade was a poor legal decision, but it drew the line for abortion legality basically where I’d like to (not that I want to start a discussion of abortion, too). Similarly, you pretty much have me convinced that Kelo is a reasonable interpretation of the law, even if I think the taking in question was dumb and quasi-nefarious. I suspect it was a failure of other types of constitutional safeguards, and something the Court didn’t think it could deal with adequately.

    But then, I also think you’ve made good points in this thread; I’m not the dead-document dogmatist you were gunning for.

  67. The city?s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan?s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court?s review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment.

    The question I asked you earlier joe is what moral and ethical right does a government have to make integrated plans for property they do not own and for which the owners do not want to sell.

    This is not a question of constitutionality. It is a question of philosophy. As a well-spoken representative of the progressive philosophy, I expect you have a clear answer to that question.

  68. Joe, if we took your word for it & as a result proposed an amendment abolishing eminent domain power entirely, what would you say to that?

  69. joe is like the folks who, when it is pointed out to them that the First Amendment does not contain the phrase separation of Church and State, but rather establishment of religion and free exercise, continue to prefer using Mr. Jefferson’s phrase as if it was part of the document. {Note: I like the concept, it just isn’t actually in the Constitution.]

    Kevin

  70. The Wine Commonsewer,

    Who empowered the Constitution? The drafters or the ratifiers?

    joe,

    Then why did several hundred Reason commenters haughtily declare, in the wake of Kelo, that the “plain language” of the Fifth Amendment required an interpretation of “public use” that has never been in effect, even in the months after the Bill of Rights was adopted, when the governors and legislatures that approved it were taking land?

    Can you give us a few examples of such? I mean specific bills that is with links to the language that we can all read.

    Of course it appears that even you are an originalist.

    Several thousand legal scholars, jurists, Presidents, and legislatures over the 200+ years – you know, people who understand the facts and issues a lot better than you, RC – would disagree.

    Specific examples please.

    The Takings clause has been used to allow land to be taken on behalf of one private party, and given to another, to achieve a public purpose since 1789.

    The Takings Clause (of the Fifth Amendment) didn’t come into being until 1791 when the Fifth Amendment was ratified.

    Similar clauses in post-revolution state constitutions were used to allow those takings even earlier.

    I’d like to see some specific examples of these. Actual court cases, laws, etc.

    It is, however, an excellent example of people who don’t know what they’re talking about to throw out slogans.

    When did the takings clause take come into being again? 🙂

  71. The Constitution is a piece of crap. We should scrap it and call for a new Constitutional Convention. It is contradictory. The 13th amendment outlaws slavery (i.e., involutary servitude) yet other amendments allow for coercive taxation. How does that work?

  72. As a pragmatic matter, Richman has a point. The courts will often follow public opinion matters of law (or at least what they perceive public opinion to be). So devleoping a public with an interest in liberty and limited government will do much to change the court’s outlook on such matters.

    However, ceding the notion of a “living constitution” has what practical benefit to those of us who belive government power shoud be limited? The constitution is the set of rules the government must abide by, it is a set of restrictions on government. By suggesting the rules as written do not matter all that much helps those who wish to expand government power, and for what gain on the limited government side?

  73. MJ, I take it you are talking about the added Bill of Rights and not the original constitution?

    If so, the power for growth of government lies within the original document (with maybe a little income to help from XVI).

  74. Hmmm. Think of the Constitution as a contract. It’s well and good to talk about changed meanings and intent, but in any contract, the first importance is given the to the actual words. After that, if the words no longer make sense or need clarification, then you can go exploring in the morass of intent, etc.

    To denigrate the plain meaning because you don’t like what it entails means that you don’t want constitutional government. There’s an effective means to alter the document that’s been used many times before. That same mechanism could be used to clarify matters that aren’t so clear today–like the actual meaning of the Second Amendment, for instance.

    This is why results-oriented court rulings and a general disrepect for the limits placed on government by the Constitution is costing us so much. If we refuse to hold to the basic provisions of the agreement among the states and the people, then we risk opening the whole structure of our government to reinterpretation. Given the relative success and stability of our system, I’d think long and hard before going there.

  75. “When I lived in a crappy apartment in the barrio it didn’t matter an inch that the president and the Congress were overwhelminglyo white. That didn’t buy my sorry white ass a loaf of bread, a tank of gas, or put one thin dime toward the rent.”

    True, but your ass’s whiteness helped you as you rose out of your poverty making the struggle just a little bit easier.

    “And that’s what the bean counters don’t get. They confuse political privilege with the ordinary act of getting through life.”

    Not really. The blindness goes the other direction. Many use their own struggles to argue that their group has it hard…

    White-maleness is an advantage that mitigates some of the difficulties you face in your particular situation. Take your situation in the crappy apartment in the barrio, add, say, black-femaleness and you would have a tougher time getting yourself out of the situation. Not due to inherent character, willingness to work, or talent. That society recognizes this as a problem and attempts to solve it with (flawed, certainly) social mechanisms is not a step towards oppressing those with white-maleness…

  76. Pro L: That seems a job for the courts, not the people?

  77. Other than philosophically, it is the courts and the other branches of government that end up with the job of interpreting the Constitution. Like the Constitution says. But, ultimately, it is something we accept and agree upon as a people. The more amorphous the Constitution becomes, the less we have anything to agree upon.

Please to post comments

Comments are closed.