Saturday, May 21, 2011

The Living Constitution

This comment comes from the SF Chronicle article about the filibuster of Goodwin Liu, and it's as good a synopsis of limited government as any I've read:
I am getting tired of arguing with the 'living Constitution' advocates - as their view begs the question of why the Constitution doesn't just say "Do whatever the hell you want...". Why go through the contortions, the word parsing, the pain of trying to bend logic and language around a re-distributionist/social justice model when they could have just given the Feds absolute power in the first place? The document is a useless jumble of words if the 'living' view holds - and we've just been deluding ourselves for 250 years waiting to find out the truth.


mazenko said...

The wisdom of the Founding Fathers is that the Constitution was intentionally broad enough to allow for interpretation over time. They knew enough to know they didn't know everything. And Jefferson, Madison, and Adams were clear in condemning people who placed a religious reverence for the document, especially in rigidity of interpretation.

Darren said...

Great. Do you disagree with the quote I published?

mazenko said...

Based on rigidity of ideas and conflict with the vision of the document ... yes.

Darren said...

So the "contortions, the word parsing" are OK with you? Wow, I grant that most people aren't so honest.

maxutils said...

parsing and contortions are almost opposite. To parse is to carefully analyze the text, breaking it in to smaller pieces. If you do this properly, the origina; intent should never be . . .contorted. And, a living Constitution should mean that it adapts to new technologies and markets -- not that you can federally regulate medical marijuana sales in California because some of it might travel across state lines; or that a state can't outlaw abortion; or that police can break in to a house if they think they smell pot;or that cities can use eminent domain to sell private property to a higher bidder. More like, if someone invents a flying machine, it makes sense to have federal oversight,since by definition it is designed to cross state lines. For my money, Kennedy is the only justice on the court who cares even a little bit about trying to interpret the Constitution correctly -- everyone else is an idealogue. From what I've seen of Liu, he might be another voice of reason.

MikeAT said...


For a man who professes to be moderate and non-ideological you seem to embrace a lot of leftist tripe.  The living and breathing concept of jurisprudence is a classic example.

Yes, the Founders did leave us a Constitution with the means to adjust as times changed.  You adjust by amendments and the legislative process.   Madison, Franklin,  et all would be appalled by the judicial fiats coming down by judges who find things in the Constitution. As a con law professor of mine said, "The question is do you want rule by the majority or rule by nine men and women in robes?". I really don't think the writers of the Constitution would want idiots on a bench telling people their property could be seized not for a public good (roads, etc) but for a water park to bring in jobs.  

There are three equal branches and there is the tension, the question of who is first among equals, legislative or executive.  But there can be no question who is least among equals, the judiciary.  By its design it's not accountable to the people and must not get beyond  its defined duties.  As Judge Bork said at his confirmation hearings, "I look at the text of the document and I defer to the legislature where the Constitution is silent."

socalmike said...

If it was meant to be a "living document", then why have one at all? Why not just make it up as you go along?
Oh, that's what the left is trying to do. Forgot.

Darren said...

Well, Max, you haven't read enough about the man. "Reason" is not one of the things Liu is known for, unless you're an ideological leftie.

MikeAT said...


To tag along, can I have a "living document" mortgage. Hey, the mortgage did originally mean I owed 200000 but in a modern context it means 20000, right?

The Constitution is basically a contract between the people and it's government on how they should be governed...I say again, governed, not ruled.

W.R. Chandler said...

I don't think my wife would be too impressed with me if told her that our marriage vows are "living and breathing" and can be "allowed for interpretation over time," as Mazenko put it.

I can assure you that my wife thinks (as do I) that our vows SHOULD have a "rigidity of interpretation," as Mazenko put it.

If something is not working or is unclear in the Constitution, then by all means, amend it. Don't just find things in there that are not addressed.

MikeAT said...


You last paragraph is problem the left has with the document. It allows people to govern themselves and that cannot be permitted...the must be ruled over for their own good, you understand! :<)

mazenko said...

The United States government has a judicial branch with the precise job description of interpreting the Constitution for the times. Is freedom of speech sacrosanct? Or is Justice Holmes interpretation of "fire and a crowded theater" an acceptable interpretation over time?
Bromides and flippant sound bites against "the left" aside. The courts interpret and apply broad language to specific situations.

But let Jefferson say it:

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

Darren said...

Jefferson and the gang intended Article V, not Article III, to be the method by which such changes took place.

I hope and pray that's not a "conservative" view.

maxutils said...

SoCal Mike, Mike AT . . .the difference between the Constitution and a mortgage is that one is a binding contract for a specific event, and the other is a frame work designed both to limit and allow legislation.

Darren, I've read a fair amount about him; I know he's liberal; and I would vastly prefer that to giving Scalia a 4th vote. He already has his, Thomas', and Alito's. And, based on my readings, and our colleague's personal experience . . .Im much more trusting of Liu to be better than the liberal 4.

mazenko said...

So, let's see if the Constitution needs "interpreting" as time goes on:

Is money "freedom of speech"? Are campaign checks?

Is the right to "bear arms" for a "well-regulated militia"? What exactly did the Founders mean if we "parse" that phrasing but don't "contort" it?

The word "privacy" is not in the Constitution. Do Americans have a right to it? What are the parameters?

Where did we get the idea of "probably cause"? Is that the Founders intention? Then where does that leave the PATRIOT Act?

Certainly, the Constitution had to be interpreted to get us the War Powers Act, Korea, Vietnam, Iraq (twice), Afghanistan, Panama, and Grenada?

The FBI, CIA, SEC, and NASA are not in the Constitution? Are they OK, or not?

Feel free to explain any or all.

Dean Baird said...

While his advocacy of charter schools and school vouchers might argue against Liu being "reasonable," (or an ideological "leftie" for that matter), I'd be willing to give him a chance.

We've seen his work as a law professor: an agitator and advocator. But HE knows the difference between the role of a law professor and the role of a judge.

Sadly, some people cannot distinguish the two roles, and imagine he'd act as a law professor when in the role of a judge.

I've been asked at times to act as a judge in science competitions. Science competitions in which my own students were competing against those from other schools. Somehow I was able to set aside the advocacy I had when preparing the team and judge the particular event on the criteria laid out by the event coordinators. My own students got no advantages or disadvantages as far as my judgment was concerned.

Is it merely because I'm a Libra that I'm able to pull off such a feat? Oh, I think Goodwin Liu is a Libra, too.

Darren said...

Conservatives are prejudiced against Libras--or at least I'm waiting for that accusation. :-)

Mazenko, I'm not going to get into a match of defending or not defending every single government program in existence. You, clearly, don't have any to which you object, and see almost no theoretical or practical limitations on federal authority. It's clear, sadly, that we have no common ground on which to meet on this subject, so I'll stop discussing it with you. For now, at least.

mazenko said...

Really, D?

Forget the govt programs. What about the first amendment and money. Is campaign money speech? If you think so, you believe in a living document.

Is freedom of speech unlimited, or are you free to threaten to kill the president with impunity? If it's limited to the situation, you believe in a living document.

Is the PATRIOT Act and "probably cause" Constitutional? If so, you believe in a living document.

From your support of governmental action in the past eight years, I'd say you very much support a living document that is parsed and contorted for the unique situation. You support many modern interpretations of the Constitution. You and many on this site believe in a living document - you just won't acknowledge it.

But feel free to explain, even in your next full posting after looking at your support of campaign finance, and show me how I am wrong about your positions.

Darren said...

Thank you for contributing :-)

MikeAT said...

The United States government has a judicial branch with the precise job description of interpreting the Constitution for the times. Is freedom of speech sacrosanct?

Actually it's purpose is to ensure acts, laws, treaties etc  made by the elected branches are within the restrictions of the Constitution.  The doctrine of judicial interpretation of the document itself has come since FDR put the fear of God into the SC by threatening to pack it.  Since then the government, especially the left in this country has preferred using the courts as instruments of  government policy because they cannot win at the ballot box.  Kinda reminds you of that statement the wise Latina made about policy being made at the district court level....then she immediately shut her mouth.  If she believes it, why didn't she proclaim it?

mazenko, why do you keep mischaracterizing the conservative position?  No one questions the Constitution adjust as times goes by.   For example the original document allowed for slavery but that was handled by what Supreme Court case?  No it was handled by the 13th and 14th Amendments.   Unlike liberals, conservatives prefer government by consent of the governed thru the legislative and executive branches, not by idiots in robes.


Your answer implied the Constitution is not a binding document.  Yes, it is.  Several states said it was not and the question was settled over four years with the cost of 600000 casualties.  And it is more than a frame work designed both to limit and allow legislation.. It an the enumeration of the consent of the people on how they will be  governed...and again, the word is governed, not ruled.  It establishes and limits the power of the federal government.  The problem is (especially since FDR) is the fed has taken more and more power and no one has stopped it.  

mmazenko said...

The Court "ensures" the acts of the elected branches are within the restrictions of the Constitution by "interpreting" the language of those laws as it applies to current law.

I'm not mischaracterizing conservative opinion - I'm challenging the inconsistency of people who claim the Constitution can not be interpreted beyond the rigidities of the specific language. So, is money "speech"? Is racial profiling constitutional based on the interpreted definition of "probable cause"?

No one has stopped the fed because its actions have been largely found by the Courts to be Constitutional. I don't know in what vacuum of society you think we live that makes everything so black and white, but governments are instituted by men who use rational minds to guide policy decisions. Just because you don't like the answer doesn't make it wrong.

neko said...

"...governments are instituted by men who use rational minds to guide policy decisions."

Rational minds? Really? And you think that we are ones living in a fantasy world...

mazenko said...

Making a reference to the Age of Reason. At any given times, members of Congress - and the Courts - act like idiots. Often that is partisan-tinged, at other times, they really are idiots. Regardless, we are a nation of laws instituted and interpreted by men. And that comes with all man's weaknesses.

MikeAT said...


Did I misunderstand what you wrote, The United States government has a judicial branch with the precise job description of interpreting the Constitution for the times.

Seeing you may need this refresher, here is Article III, Constitution of the United States....

I defy you to point out here (or anywhere in the document) it authorizes a judge to interpret the constitution

To answer your question of "is money speech" (before you have a stroke) I will answer, yes and no.  It is speech in and of itself, no.  It is not the verbal projection of thoughts, ideas, etc.  But what it does is does is premit the transmission of ideas, thoughts, etc.  Even back in the 1700s the  way to transmit thoughts to a wide audiance was either to stand up in front of people or publish it.  Each requries money for yes, money is, in that context speech and is absolutely  covered by five of the most beautiful words ever written in the English language, Congress shall make no law.... abridging the freedom of speech.

Now I do have a question for you.  Let's look to the 15 years into the future and see you as a now retired teacher and you want to go into public service, i.e. run for Congress.  You file all the necessary applications and this needle nose prick looks down at you and says "You are  not qualified to run for public office Mr Mazeko.  Accoring to IRS audit you have been making contributions and actively attending services at house of worship of the Jewish faith, sometimes called a synagogue.  You are not qualified for public office."  

At this moment you have the stroke and you scream "That's bulls%^&!...this is America and I have freedom of religion...I'm a free man and I can worsihp as I want's in the First Amendment of the Constition..." 

Little  20 something no knowing says "No Mr Mazenko, you have it all wrong.  It's freedom from religion.  The Supreme Court intrepretedin ACLU vs Smith that the Constition says the modern context it meant you don't have to have religion and as you do, it would be a violation of the separation of church and state.

You point out as the blood is running from your eyes and ears "That's wrong....look at Article IV where it says religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
And finally the Kennedy School of Government student on his AmericCorps rotation points chimes in "Mr Mazenko, didn't you read Jones vs ACLU...the Supreme Court intrepreted in a modern contex that is all wrong....with a living and breathing document that means something else and people of any non approved faith are not allowed into public service...prehaps you should get your soul right...go see Reverend  ALGORE and give him your time, money and support...."

 I  not saying five idiots on the Supreme Court should be allowed the power to say are.  By these and other writings you have posted you think that is what the Founders wanted.  I disagree.  The Constitution means what it says and says what it means...or it means nothing.  

 PS: neko, great point :)

MikeAT said...

...members of Congress - and the Courts - act like idiots....

As you kinda imply, they often are not acting.....

mazenko said...

Actually, I won't be eligible to retire for another twenty-two years when I step out of the classroom at the age of 64. And, at that point I may run for office, as I have already done, and your exaggerated and completely illogical example will not prevent me from doing so - just like it didn't prevent me from running before. Hysterical hypotheticals are not very convincing argumentation - but then again, Fox news commentators have made billions doing it, so feel free.

Interesting double-standard with your wiki entry - you argue with a strict word for word interpretation, but then "interpret" the intention of the Founding Fathers to equate money with freedom of speech. I figured as much.

Care to address the other issues? - privacy, probable cause, racial profiling, threatening speech, War Powers Act, well-regulated militias, etc.

Feel free to give me your - and the courts' - interpretations of the document's intentions.

mazenko said...

Interesting point, too, about connecting your "interpretation" of campaign funding as speech to the 1700s - because campaign finance wasn't even a hint of an idea at those times. So, campaign finance as free speech truly requires some "interpretation" for a contemporary issue that didn't exist during the writing of the document.

But don't let history get in your way, now. You never have before.

MikeAT said...

…at that point I may run for office, as I have already done, and your exaggerated and completely illogical example will not prevent me from doing so

Really is it that out of bounds…how out of bounds was it when a judge said a man has no authority to resist an illegal entry by police? Or when a 5-4 decision turns over hundreds of years of jurisprudence by saying eminent domain encompasses making money for the local government as well as providing a public good such as a school, road way, etc. Was the example of a religious test a hypothetical, yes. To explain the problem with have with judges who seem quite content to make themselves overlords over people with no accountable and with sheepeople out there who are quite content to be ruled like that. And for a man who claims to be a superior English instructor you seem to miss a point that is staring you in the face. What is to stop the judiciary from doing it? If a federal judge can say “The Second Amendment may say …right of the people but that doesn’t say people can own a firearm what are the limits. You just think that’s what you read…“ Unlike you, I seem to be able to read the English language.

My wiki post is just Article III of the US Constitution. I just asked where in the document does it say the courts may interpret the Constitution. Please answer the question and spare us all one of your nonsensical rants. I get enough of the mental and homeless at work, thank you. I don’t question the courts have the power to see if an act of the other two branches is within the limits of the Constitution. Liberals like you want overlords in black robes to tell us “we will adjust the Founding documents of this republic as we see fit…and you don’t have any authority to tell us otherwise…”

There is nothing contradictory over money and speech. If you want to go into a town square in 1776 Philadelphia and scream “Screw George III” that cost little. If you want to put out pamphlets to spread the word over a large audience that takes money (printing press, water, other supplies, distribution, etc). If I want to let it out over the airways, that cost money. Restrictions on that money will allow the bureaucracy to limit the spread of knowledge. A supposed free thinking man I would imagine you would want more speech, especially in the political arena. Or is liberty only for the regressive movement in your world?

OK, I’ll answer the end of your rant with few questions of my own.

What rights are granted by the Constitution (basic document or amendments?)

What is a militia?

Define probable cause.

Feel free to use ALGORE’s invention of the internet to look these up.

maxutils said...

Mike AT . . .I agree with you more often than I don't. But the semantics don't become you. You're right -- article III doesn't say interpret; but you yourself say you agree that the courts have the power to find whether something falls with in the Constitution. How would that be possible without interpreting it? The problem isn't interpreting it, it's doing it wrong.

mazenko said...

Exactly - you don't seem to see you're arguing on the same side as I am. The issues you mention are exactly the ones that need to be interpreted. The document doesn't literally state "The Courts shall interpret the Constitution," just as it doesn't state "Money can be considered a representation of free speech when the money is used to fund the free expression of speech in financing a campaign."

Jefferson and Madison knew they couldn't itemize and list every situation, and thus expected that people would adapt the broad language to specific situations. And they both warned about being too rigid and literal when dealing with only what is explicitly stated. That's why both men regularly interpreted the document in letters and speeches, as when Jefferson said the wording of the document effectively creates a "wall of separation between church and state." He never put those exact words in the document, but explained that it should be interpreted that way.

This is like that classic Brady Bunch episode where Greg learns the lesson of living by "exact words."

By the way, continuously reporting a fallacious straw man argument like Al Gore and the internet doesn't really increase your credibility with informed people.

MikeAT said...

max and maz

Sorry it’s taken so long to get back to you...14 hour shifts combined with holiday prep and limited internet access (thank Time Warner).

It’s not the semantics. The problem is judges are taking it upon themselves to interpret the Constitution within a modern context and saying “Well, the Constitution says spite of what you are reading”. The document doesn’t not empower the judges to do that and it has methods for adjustment as time goes on (i.e. The legislative process, the amendment process). Classic example is of judicial activism is Roe vs Wade. No matter what your opinion on abortion, the combining of the 3rd, 4th, 9th and 14th Amendment into a general right to privacy that covers abortion is beyond any legitimate use of judicial authority. It’s not for the federal government to decide this issue. That is a matter left for the states. And it’s not right for society. We are (for the moment) a free society governed by ourselves. Yet one of the most hotly debated issues left over from the 50/60s was decided by a handful of judicial oligarchs. In comparison the government of England liberalized it’s abortion laws by it’s legislative process during the 60s and 70s. And unlike in America, abortion is not an open festering wound to society.

But to go back to money in politics mazenko, your comments seem to imply there was no money in advertising or politics back in the late 1700s and that is wrong. To broadcast an opinion took money back then. Publication of newspapers (which were openly partizan back then, as opposed to falsely objective now) was not free. If you wanted to publish pamphlets and send them out, that cost money. The Founders knew that and why there are those five beautiful words at the beginning of the 1st Amendment, Congress shall make no law.... And its why McCain-Feingold is blatantly unconstitutional.

BTY mazenko, my questions are no more a Red Herring as yours on money in politics. The ALGORE comment was a touch of sarcasm..