unintended consequences of a 'living constitution' - Tilted Forum Project Discussion Community

dksuddeth · 06-13-2010, 05:48 AM

many arguments and debates have centered around the idea/notion that the constitution is not a fixed and unchanging legal document, but instead is a living and breathing document designed to be interpreted according to the times that we live in. Many have argued vehemently against this 'living' document theory because it then allows an ever changing political bureaucracy and judicial entity to implement policy for the nation that they otherwise wouldn't have the power to enact. Well here is your unintended consequence of that 'living' theory.

Arizona's Next Immigration Target: Children of Illegals - Yahoo! News

Quote:

"Anchor babies" isn't a very endearing term, but in Arizona those are the words being used to tag children born in the U.S. to illegal immigrants. While not new, the term is increasingly part of the local vernacular because the primary authors of the nation's toughest and most controversial immigration law are targeting these tots - the legal weights that anchor many undocumented aliens in the U.S. - for their next move.

Buoyed by recent public opinion polls suggesting they're on the right track with illegal immigration, Arizona Republicans will likely introduce legislation this fall that would deny birth certificates to children born in Arizona - and thus American citizens according to the U.S. Constitution - to parents who are not legal U.S. citizens. The law largely is the brainchild of state Sen. Russell Pearce, a Republican whose suburban district, Mesa, is considered the conservative bastion of the Phoenix political scene. He is a leading architect of the Arizona law that sparked outrage throughout the country: Senate Bill 1070, which allows law enforcement officers to ask about someone's immigration status during a traffic stop, detainment or arrest if reasonable suspicion exists - things like poor English skills, acting nervous or avoiding eye contact during a traffic stop. (See the battle for Arizona: will a border crackdown work?)

But the likely new bill is for the kids. While SB 1070 essentially requires of-age migrants to have the proper citizenship paperwork, the potential "anchor baby" bill blocks the next generation from ever being able to obtain it. The idea is to make the citizenship process so difficult that illegal immigrants pull up the "anchor" and leave. (See pictures of the Great Wall of America.)

The question is whether that would violate the U.S. Constitution. The 14th Amendment states that "all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was intended to provide citizenship for freed slaves and served as a final answer to the Dred Scott case, cementing the federal government's control over citizenship.

But that was 1868. Today, Pearce says the 14th Amendment has been "hijacked" by illegal immigrants. "They use it as a wedge," Pearce says. "This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we've created." Pearce says he is aware of the constitutional issues involved with the bill and vows to introduce it nevertheless. "We will write it right." He and other Republicans in the red state Arizona point to popular sympathy: 58% of Americans polled by Rasmussen think illegal immigrants whose children are born here should not receive citizenship; support for that stance is 76% among Republicans.

Those who oppose the bill say it would lead to more discrimination and divide the community. Among them is Phoenix resident Susan Vie, who is leading a citizen group that's behind an opposing ballot initiative. She moved to the U.S. 30 years ago from Argentina, became a naturalized citizen and now works as a client-relations representative for a vaccine company. "I see a lot of hate and racism behind it," Vie says. "Consequently, I believe it will create - and it's creating it now - a separation in our society." She adds, "When people look at me, they will think, 'Is she legal or illegal?' I can already feel it right now." Vie's citizen initiative would prohibit SB 1070 from taking affect, place a three-year moratorium on all related laws - including the anchor baby bill - to buy more time for federal immigration reform. Her group is racing to collect 153,365 signatures by July 1 to qualify for the Nov. 2 general election.

Both sides expect the anchor baby bill to end up before the U.S. Supreme Court before it is enacted. "I think it would be struck down as facially unconstitutional. I can't imagine a federal judge saying this would be OK," says Dan Barr, a longtime Phoenix lawyer and constitutional litigator. Potentially joining the anchor baby bill at the Supreme Court may be SB 1070, which Arizona Republican Governor Jan Brewer signed into law in April. It is set to take effect July 29, but at least five courtroom challenges have been filed against it. Pearce says he will win them all.

so, to all of the 'living constitution' theorists, do you still believe that the constitution should be interpreted to exist within the current times? or would you now like it to mean what it actually says?

14th Amendment, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

filtherton · 06-13-2010, 07:17 AM

I expect that this will be struck down in the courts. I'm not sure how that won't be a sign that the system, however crippled it usually is, still works.

I think this is more an issue of legislators ignoring the constitution to score cheap political points than it is an illustration of the problems with the notion of a living constitution. If this makes it through the courts, you may have a point.

Jinn · 06-13-2010, 07:33 AM

The living Constitution paradigm also allowed us to decide that slaves are not 3/5 of a person.

This won't stand, if we have any politicians left with guts. We shouldn't be changing the Constitution to deny rights.

dksuddeth · 06-13-2010, 08:04 AM

Quote:

Originally Posted by Jinn

The living Constitution paradigm also allowed us to decide that slaves are not 3/5 of a person.

completely false statement. the constitution was amended, twice, through the prescribed methods in the constitution to recognize that negros were no longer property, but persons with full rights and privileges afforded other US citizens.

roachboy · 06-13-2010, 08:31 AM

where is the space for a discussion here, dk?

could you be a little more clear about what you have in mind?
or are you just planning on telling all who do not agree with your assumptions that they're wrong?
how is that a discussion?

dksuddeth · 06-13-2010, 08:58 AM

Quote:

Originally Posted by roachboy

where is the space for a discussion here, dk?

could you be a little more clear about what you have in mind?
or are you just planning on telling all who do not agree with your assumptions that they're wrong?
how is that a discussion?

maybe it's not as obvious as I thought, but my challenge was for people to step back and re-examine their propensity to accept a 'living' document theory. If they still wish it to be so, then they could explain how they'll accept changes in our societies laws like this one.

roachboy · 06-13-2010, 09:08 AM

so the set up appears to be:

"liberals" tend to see the constitutional system rather than the constitution.
"liberals" probably won't like this latest neo-fascist anti-migrant law.

"strict constructionists" tend to see the constitution rather than a constitutional system.

and the operative premise:

this az nonsense wouldn't have happened under strict construction premises.

permutation:

"liberals" might find this situation one in which they could see strict construction as offering them protections against the same thing that conservative strict constructionists do...namely laws they don't like.

problem is that there's any number of ways to frame the az situation and its not obvious that strict construction is relevant. except insofar as it's relevant for you personally when you think about this kind of thing. but is there a reason beyond that to import this interpretive framework into this issue?

could you explain that more please?

dksuddeth · 06-13-2010, 09:51 AM

Quote:

Originally Posted by roachboy

so the set up appears to be:

"liberals" tend to see the constitutional system rather than the constitution.
"liberals" probably won't like this latest neo-fascist anti-migrant law.

being a constitutional libertarian, I tend to group conservatives within the same sphere of 'living' document theorists because of their support for the war on drugs, the war on terror, and 'advanced interrogation', in other words, torture.

Quote:

Originally Posted by roachboy

"strict constructionists" tend to see the constitution rather than a constitutional system.

how is there a difference? especially considering that the constitution defines that constitutional system.

Quote:

Originally Posted by roachboy

and the operative premise:

this az nonsense wouldn't have happened under strict construction premises.

permutation:

"liberals" might find this situation one in which they could see strict construction as offering them protections against the same thing that conservative strict constructionists do...namely laws they don't like.

this is but one example. I've stated numerous times how the living document theory is not only wrong, but how it sets up the advantage of the government over the people in order to advance ideological theories that were in no way intended by the framers of this country.

Quote:

Originally Posted by roachboy

problem is that there's any number of ways to frame the az situation and its not obvious that strict construction is relevant. except insofar as it's relevant for you personally when you think about this kind of thing. but is there a reason beyond that to import this interpretive framework into this issue?

could you explain that more please?

I've already stated that, but I'll do it again.

The 14th Amendment clearly states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

normally, liberals would use the 'living' document theory to advance their own ideological agenda's like gun control saying that a 'well regulated militia' is either the national guard or something no longer needed because we have a strong standing army and police force to protect us, like we're no longer post revolutionary having to defend against the UK anymore. Now, it's on the other foot with wrong headed conservatives in AZ trying to advance an ideological theory of their own with anchor babies, saying that the crafters of the 14th Amendment could not conceive the idea of 'anchor babies', or in the words of the article, it's no longer the 1800s.

In short, my opinion is that the 'living document' theorists latch on to this recent idea so they may enact change in this nation without having to go by prescribed methods because they see it as too difficult, but now that maybe they see this employed by the other side, would they be willing to reconsider their theory or not? If not, explain why, and if so, the same.

Martian · 06-13-2010, 09:54 AM

Granted, I'm far from up to speed on US constitutional arguments, as they're not particularly relevant to me, but I'm failing to see how this has anything to do with constitutional interpretation.

I'm assuming, from my uninformed position, that all interpretations of the US constitution ground themselves within the constitution itself, regardless of how they choose to read and implement said document. Thus, for example, one can argue on how extensive the right to keep and bear arms is, but cannot argue on whether or not said right should be granted. A blanket ban on all firearms is unconstitutional no matter how you choose to interpret the second amendment because of the specific phrasing ("...the right to keep and bear arms shall not be infringed.")

That said, I'm not sure I see how anyone can say this proposed bill is constitutional under any argument. The very first line of the fourteenth amendment, according to both Wikipedia and the above cited article, reads:

Quote:

Originally Posted by Fourteenth Amendment, US Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

(Emphasis mine, of course.)

To be quite blunt, that's pretty damn explicit. There's no provision regarding the nationality or status of the parents, and there's not really any room to argue about it. "All persons" does not allow for exceptions. In that context, I don't see how this law could be considered constitutional under any interpretation, unless the legislators behind it are prepared to argue that the individuals in question are not subject to the jurisdiction of the United States, which needless to say would be even more bizarre.

Can anyone clarify this?

Derwood · 06-13-2010, 12:55 PM

i think dk is conflating "living document" people with "2nd amendment is unclear" people

FuglyStick · 06-13-2010, 01:18 PM

dk will interpret the Constitution however he sees fit, and everyone else is wrong and can fuck off.

silent_jay · 06-13-2010, 01:25 PM

Quote:

Originally Posted by FuglyStick

dk will interpret the Constitution however he sees fit, and everyone else is wrong and can fuck off.

Pretty much how I reckon this thread will go, especially once I read:

Quote:

so, all you 'living constitution' bullshit artists.

ratbastid · 06-13-2010, 01:40 PM

Quote:

so, all you 'living constitution' bullshit artists

Yeah, I thought this was kind of an interesting topic and was sort of looking forward to discussing it.

And then... not.

Baraka_Guru · 06-13-2010, 03:18 PM

If the Constitution weren't meant to be interpreted case by case where cases requiring judgement arise, then the Constitution is either a grossly flawed or a grossly obsolete document.

Why is there a Supreme Court?

dksuddeth · 06-13-2010, 03:39 PM

Quote:

Originally Posted by Baraka_Guru

If the Constitution weren't meant to be interpreted case by case where cases requiring judgement arise, then the Constitution is either a grossly flawed or a grossly obsolete document.

Why is there a Supreme Court?

the supreme court has a function listed in the constitution. In other cases arising from government encroachment, the jury is the arbiter of the law.

The_Jazz · 06-14-2010, 04:40 AM

Quote:

Originally Posted by ratbastid

Yeah, I thought this was kind of an interesting topic and was sort of looking forward to discussing it.

And then... not.

If I'd have been online when this was originally posted, I would have killed the thread and told DK to start again but without trying to offend his opponents in the opening post.

But that's me. And here we are with a shithole of a thread.

Derwood · 06-14-2010, 06:29 AM

better to contain it here than to have him threadshit in every discussion

dksuddeth · 06-14-2010, 07:54 AM

ok, so now that i've put a check on my anger, for the most part, I'd like to reiterate my question and see if the discussion can continue.

Would the 'living constitution' theorists like to chime in about this proposed law and what it might mean for re-interpreting the constitution in ideological terms?

and derwood, I realize you have a complete phobia and hatred for guns, but that doesn't mean that bringing them up is a threadshit, k?

Jinn · 06-14-2010, 10:03 AM

dk, I tried to engage, as I suppose I fall in the camp of people who believe the Constitution is (nominally) a living document.

I'm just not seeing the connection between that belief and the Arizona law. An abuse of the 'living Constitution' would be something more egregious, and dare I say, federal.

In this case, Arizona politicians are acting fast-and-loose with the law for personal gains or desires, desires I believe are driven by simple xenophobia. I don't expect this to stand US Constitutional muster, just as I didn't think Washington DC's ban. It takes time to revoke these patently ridiculous laws, sure, but their existence is an indication of power-hungry politicians, not some inherent flaw with living Constition theory. If there were challenged to the SCOTUS and found Constitional based on a contemporary reading of the Constition, then you'd have a legitimate grievance. That would be justices using a 'living document' paradigm to irrevocably change the nature of the country. We're a long shot from there, aren't we?

dksuddeth · 06-14-2010, 10:10 AM

Quote:

Originally Posted by Jinn

dk, I tried to engage, as I suppose I fall in the camp of people who believe the Constitution is (nominally) a living document.

I'm just not seeing the connection between that belief and the Arizona law. An abuse of the 'living Constitution' would be something more egregious, and dare I say, federal.

In this case, Arizona politicians are acting fast-and-loose with the law for personal gains or desires, desires I believe are driven by simple xenophobia. I don't expect this to stand US Constitutional muster, just as I didn't think Washington DC's ban. It takes time to revoke these patently ridiculous laws, sure, but their existence is an indication of power-hungry politicians, not some inherent flaw with living Constition theory. If there were challenged to the SCOTUS and found Constitional based on a contemporary reading of the Constition, then you'd have a legitimate grievance. That would be justices using a 'living document' paradigm to irrevocably change the nature of the country. We're a long shot from there, aren't we?

maybe in regards to this particular law, yes. But over the last 150 years, can we not see many examples of judicial tyranny in the guise of rulings using the 'living constitution' theory? For instance, the 14th Amendment was ratified to specifically overrule dred scott, so what did the supreme court do? the incorporation doctrine. This was done using 'living constitution' theory, IMO, and every case that incorporated a part of the bill of rights since then has been done using 'living constitution' theory.

Cimarron29414 · 06-14-2010, 12:38 PM

I would disagree with and oppose this new AZ law. If I were the legislator in AZ and felt the way he did, I would attempt to amend the AZ laws to reduce/eliminate the clout a U.S. born dependant has when considering the status of illegal worker parents (I think we settled on this vernacular in a previous thread). Meaning, "Your kid can stay, but you can't." Harsh, but I think you would avoid the Constitutional entanglements that this law clearly has.

G5000 · 06-19-2010, 06:27 PM

The idea of a "living Constitution" which means it is interpreted according to contemporary times is not the way it was intended. That is the opposite of what was intended.

We are a nation of precedents. Such a system acts as a moderating force on the passions of the times.

In 1832, a Frenchman came to America to study our penal system. He ended up writing about our entire democratic system in the best political science book of all time, Democracy in America.

Alexis de Tocqueville had a lot to say about a lot of things, including our system of jurisprudence.

I believe what follows covers this topic perfectly:

Quote:

The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings.

This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done; the former produce precedents, the latter reasons. A French observer is surprised to hear how often an English or an American lawyer quotes the opinions of others and how little he alludes to his own, while the reverse occurs in France. There the most trifling litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed; and the fundamental principles of law are discussed in order to obtain a rod of land by the decision of the court. This abnegation of his own opinion and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this servitude of thought which he is obliged to profess, necessarily give him more timid habits and more conservative inclinations in England and America than in France.

The French codes are often difficult to comprehend, but they can be read by everyone; nothing, on the other hand, can be more obscure and strange to the uninitiated than a legislation founded upon precedents. The absolute need of legal aid that is felt in England and the United States, and the high opinion that is entertained of the ability of the legal profession, tend to separate it more and more from the people and to erect it into a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country; but the English or American lawyer resembles the hierophants of Egypt, for like them he is the sole interpreter of an occult science.

The position that lawyers occupy in England and America exercises no less influence upon their habits and opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and authority upon the members of the legal profession. In English society, lawyers do not occupy the first rank, but they are contented with the station assigned to them: they constitute, as it were, the younger branch of the English aristocracy; and they are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle the aristocratic tastes and ideas of the circles in which they move with the aristocratic interests of their profession.

And, indeed, the lawyer-like character that I am endeavoring to depict is most distinctly to be met with in England: there laws are esteemed not so much because they are good as because they are old; and if it is necessary to modify them in any respect, to adapt them to the changes that time operates in society, recourse is had to the most inconceivable subtleties in order to uphold the traditionary fabric and to maintain that nothing has been done which does not square with the intentions and complete the labors of former generations. The very individuals who conduct these changes disclaim any desire for innovation and had rather resort to absurd expedients than plead guilty to so great a crime. This spirit appertains more especially to the English lawyers; they appear indifferent to the real meaning of what they treat, and they direct all their attention to the letter, seeming inclined to abandon reason and humanity rather than to swerve one tittle from the law. English legislation may be compared to the stock of an old tree upon which lawyers have engrafted the most dissimilar shoots in the hope that, although their fruits may differ, their foliage at least will be confused with the venerable trunk that supports them all.

In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.

The more we reflect upon all that occurs in the United States the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.

As I am a new poster, I cannot post a link to the source of that quote.

But it can be found in Book 1, Chapter 16 of the aforementioned book.

---------- Post added at 07:27 PM ---------- Previous post was at 07:22 PM ----------

Quote:

Originally Posted by Jinn

The living Constitution paradigm also allowed us to decide that slaves are not 3/5 of a person.

As someone else pointed out, it was not a judicial interpretation which did this. It was a Constitutional amendment.

Quote:

Originally Posted by Jinn

This won't stand, if we have any politicians left with guts. We shouldn't be changing the Constitution to deny rights.

This is a very good point. The Constitution has been used only once to take away a right, Prohibition. And that was reversed.

We should always be very suspicious of any proposed amendment to deny someone a right. That is as un-American as it gets.

Willravel · 06-19-2010, 07:20 PM

As a proud living constitution bullshit artist, I feel I should remind everyone that the amendment process is part of what makes the Constitution alive. That, combined with legal, Constitutional judicial decisions, are how the Constitution stays a relevant document for people in 2010 just as it was in the late 18th century. Of course it's risky to allow the Constitution to be amended and reinterpreted, but it's a necessary risk. America in 1780 is not the same country as America in 2010. The Constitution of 1780 wouldn't work in 2010.

G5000 · 06-19-2010, 09:29 PM

The USA of 2010 wouldn't exist if it wasn't for the Constitution of 1787.

Willravel · 06-19-2010, 09:55 PM

And we wouldn't exist if not for Rome, but alas I don't wish to be a citizen of an Empire. I much prefer the Republic.

The point is, our Constitution is so brilliant, in part, because of its ability to adapt when necessary to the times in order to remain just and serve the people. It can legally adapt by amendment or judicial interpretation. Our judicial system is responsible for a woman's right to decide whether or not she remains pregnant. Our judicial system is responsible for the desegregation of schools.=

Wes Mantooth · 06-20-2010, 11:07 AM

I'd have to agree Will, the constitution needs to be able to evolve to truly reflect the world we live in rather then hoping the world we live in reflects the constitution. To rigidly cling to an 18th century document under the guise that the founding fathers were infallible is ridiculous and ignoring the realities of the world around us. Nobody that signed the constitution could have possibly foreseen, with any sort of accuracy, what the US would look like in 2010 and being able to change with the times is something that's helped our country not only stay intact but grow for 230 years.

I'll fully admit that a living constitution can be and is a double edged sword. Abuses of the system do happen and we must tread very carefully but to deny it its natural evolution would be foolish.

Push-Pull · 06-20-2010, 11:34 AM

Quote:

Originally Posted by Cimarron29414

I would disagree with and oppose this new AZ law. If I were the legislator in AZ and felt the way he did, I would attempt to amend the AZ laws to reduce/eliminate the clout a U.S. born dependant has when considering the status of illegal worker parents (I think we settled on this vernacular in a previous thread). Meaning, "Your kid can stay, but you can't." Harsh, but I think you would avoid the Constitutional entanglements that this law clearly has.

Arizona might also accomplish this by simply denying birth certificates for children born to illegal immigrants.

ASU2003 · 06-20-2010, 01:30 PM

Quote:

Originally Posted by Push-Pull

Arizona might also accomplish this by simply denying birth certificates for children born to illegal immigrants.

As much as they might like to, the federal law and the 14th amendment say they can't do that.

(And when did Mesa become "the conservative bastion of the Phoenix political scene"? I thought it was just a bunch of blue collar workers and meth labs.)

dksuddeth · 06-20-2010, 03:25 PM

Quote:

Originally Posted by Willravel

As a proud living constitution bullshit artist, I feel I should remind everyone that the amendment process is part of what makes the Constitution alive. That, combined with legal, Constitutional judicial decisions, are how the Constitution stays a relevant document for people in 2010 just as it was in the late 18th century. Of course it's risky to allow the Constitution to be amended and reinterpreted, but it's a necessary risk. America in 1780 is not the same country as America in 2010. The Constitution of 1780 wouldn't work in 2010.

to allow, even encourage, judicial interpretation and decisions to 'evolve' as the years go on, you realize that, as is stated in an above post, that it is a double edged sword with the very real possibility of the courts removing rights as well?

For example, John Bad Elk v. US, which acknowledges the right of a person to resist an unlawful arrest, decided in 1900, because liberty of the individual was that important. Now, move forward to 1998, in the case of State (WI) v. Hobson, where the state supreme court decided the following - "[C]ourts and legislatures have terminated the right to forcibly resist unlawful arrest because legal and societal circumstances have changed dramatically since the inception of that right. In the early development of the common law, physical resistance used to be an effective response to the problem of unlawful arrest. There were few if any means of effective redress for unlawful arrest. None of these reasons remains valid today."

Now replace that right to resist unlawful arrest with the right to free speech and use terrorism as the excuse, or the right to be an American citizen even though your parents are not, add in a sympathetic supreme court and a living constitution theory, and now congress can indeed make a law that prohibits free speech or prevents you from being a citizen even though you were born here.

Is that the kind of republic the founders intended?

Willravel · 06-20-2010, 05:28 PM

Quote:

Originally Posted by dksuddeth

to allow, even encourage, judicial interpretation and decisions to 'evolve' as the years go on, you realize that, as is stated in an above post, that it is a double edged sword with the very real possibility of the courts removing rights as well?

The amendment process is also a double-edged sword. And under some circumstances, not allowing for an amendment or a judicial interpretation could be a double edged sword.

I believe that, over all, the developments in the amendment and judicial interpretation processes have been beneficial to our nation much more than they've been dangerous, destructive, or harmful. For every "corporations are persons" there are three civil liberties guaranteed by a judge or by the amendment process. I can't even describe how important issues like suffrage are to our striving to be a just nation. The ideal that all people are created equal is truly paramount.

I've not yet read the rest of your post, but I'm going to assume you're going to name one or more specific cases of judicial interpretation that you (and even I) may find unjust. I readily admit there's a risk involved, but that risk is outweighed by the greater risk of a stagnated, outdated Constitution. I want our most current understanding of justice to be reflected in our laws, and the only way that's possible is by allowing our laws to change over time to suit the world they seek to make just.

Sun Tzu · 06-22-2010, 09:37 AM

"Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

--Senator Jacob Howard, Co-author of the citizenship clause of the 14th Amendment, 1866.

Derwood · 06-26-2010, 06:53 AM

Quote:

Originally Posted by Sun Tzu

"Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

--Senator Jacob Howard, Co-author of the citizenship clause of the 14th Amendment, 1866.

if it's not in the amendment, it doesn't matter. Howard could have said anything he wanted about it, but he didn't put it in the amendment, so who cares?

Sun Tzu · 06-27-2010, 03:11 AM

Quote:

Originally Posted by Derwood

if it's not in the amendment, it doesn't matter. Howard could have said anything he wanted about it, but he didn't put it in the amendment, so who cares?

Well thats the whole debate coming up in the next session. The same argument that radical racists on the right are trying to interpret it in a way that suits their personal agendas is being made by others in ignoring the amendment.

It will be interesting to see what the outcome is. It may even be the first chance everyone will see first hand how the wisdom of the Supreme's latest addition and the richness of the life she has had will reach a better conclusion than the challengers. Im sure Aztlan wont even be on her mind.

With its shady conception, this may be more a clarification than challenge though.

06-13-2010, 07:33 AM	#3 (permalink)
Jinn Lover - Protector - Teacher Location: Seattle, WA	The living Constitution paradigm also allowed us to decide that slaves are not 3/5 of a person. This won't stand, if we have any politicians left with guts. We shouldn't be changing the Constitution to deny rights. __________________ "I'm typing on a computer of science, which is being sent by science wires to a little science server where you can access it. I'm not typing on a computer of philosophy or religion or whatever other thing you think can be used to understand the universe because they're a poor substitute in the role of understanding the universe which exists independent from ourselves." - Willravel

06-13-2010, 08:31 AM	#5 (permalink)
roachboy Super Moderator Location: essex ma	where is the space for a discussion here, dk? could you be a little more clear about what you have in mind? or are you just planning on telling all who do not agree with your assumptions that they're wrong? how is that a discussion? __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

06-13-2010, 09:08 AM	#7 (permalink)
roachboy Super Moderator Location: essex ma	so the set up appears to be: "liberals" tend to see the constitutional system rather than the constitution. "liberals" probably won't like this latest neo-fascist anti-migrant law. "strict constructionists" tend to see the constitution rather than a constitutional system. and the operative premise: this az nonsense wouldn't have happened under strict construction premises. permutation: "liberals" might find this situation one in which they could see strict construction as offering them protections against the same thing that conservative strict constructionists do...namely laws they don't like. problem is that there's any number of ways to frame the az situation and its not obvious that strict construction is relevant. except insofar as it's relevant for you personally when you think about this kind of thing. but is there a reason beyond that to import this interpretive framework into this issue? could you explain that more please? __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

06-13-2010, 12:55 PM	#10 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	i think dk is conflating "living document" people with "2nd amendment is unclear" people __________________ "You can't shoot a country until it becomes a democracy." - Willravel

06-13-2010, 03:18 PM	#14 (permalink)
Baraka_Guru warrior bodhisattva Super Moderator Location: East-central Canada	If the Constitution weren't meant to be interpreted case by case where cases requiring judgement arise, then the Constitution is either a grossly flawed or a grossly obsolete document. Why is there a Supreme Court? __________________ Knowing that death is certain and that the time of death is uncertain, what's the most important thing? —Bhikkhuni Pema Chödrön Humankind cannot bear very much reality. —From "Burnt Norton," Four Quartets (1936), T. S. Eliot

06-13-2010, 07:17 AM	#2 (permalink)
filtherton Junkie Location: In the land of ice and snow.	I expect that this will be struck down in the courts. I'm not sure how that won't be a sign that the system, however crippled it usually is, still works. I think this is more an issue of legislators ignoring the constitution to score cheap political points than it is an illustration of the problems with the notion of a living constitution. If this makes it through the courts, you may have a point.

06-13-2010, 01:18 PM	#11 (permalink)
FuglyStick WHEEEE! Whee! Whee! WHEEEE! Location: Southern Illinois	dk will interpret the Constitution however he sees fit, and everyone else is wrong and can fuck off.

06-14-2010, 06:29 AM	#17 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	better to contain it here than to have him threadshit in every discussion __________________ "You can't shoot a country until it becomes a democracy." - Willravel

06-14-2010, 07:54 AM	#18 (permalink)
dksuddeth Junkie Location: bedford, tx	ok, so now that i've put a check on my anger, for the most part, I'd like to reiterate my question and see if the discussion can continue. Would the 'living constitution' theorists like to chime in about this proposed law and what it might mean for re-interpreting the constitution in ideological terms? and derwood, I realize you have a complete phobia and hatred for guns, but that doesn't mean that bringing them up is a threadshit, k? __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

06-14-2010, 10:03 AM	#19 (permalink)
Jinn Lover - Protector - Teacher Location: Seattle, WA	dk, I tried to engage, as I suppose I fall in the camp of people who believe the Constitution is (nominally) a living document. I'm just not seeing the connection between that belief and the Arizona law. An abuse of the 'living Constitution' would be something more egregious, and dare I say, federal. In this case, Arizona politicians are acting fast-and-loose with the law for personal gains or desires, desires I believe are driven by simple xenophobia. I don't expect this to stand US Constitutional muster, just as I didn't think Washington DC's ban. It takes time to revoke these patently ridiculous laws, sure, but their existence is an indication of power-hungry politicians, not some inherent flaw with living Constition theory. If there were challenged to the SCOTUS and found Constitional based on a contemporary reading of the Constition, then you'd have a legitimate grievance. That would be justices using a 'living document' paradigm to irrevocably change the nature of the country. We're a long shot from there, aren't we? __________________ "I'm typing on a computer of science, which is being sent by science wires to a little science server where you can access it. I'm not typing on a computer of philosophy or religion or whatever other thing you think can be used to understand the universe because they're a poor substitute in the role of understanding the universe which exists independent from ourselves." - Willravel

06-14-2010, 12:38 PM	#21 (permalink)
Cimarron29414 Still Free Location: comfortably perched at the top of the bell curve!	I would disagree with and oppose this new AZ law. If I were the legislator in AZ and felt the way he did, I would attempt to amend the AZ laws to reduce/eliminate the clout a U.S. born dependant has when considering the status of illegal worker parents (I think we settled on this vernacular in a previous thread). Meaning, "Your kid can stay, but you can't." Harsh, but I think you would avoid the Constitutional entanglements that this law clearly has. __________________ Gives a man a halo, does mead. "Here lies The_Jazz: Killed by an ambitious, sparkly, pink butterfly."

06-19-2010, 07:20 PM	#23 (permalink)
Willravel ... a sort of licensed troubleshooter.	As a proud living constitution bullshit artist, I feel I should remind everyone that the amendment process is part of what makes the Constitution alive. That, combined with legal, Constitutional judicial decisions, are how the Constitution stays a relevant document for people in 2010 just as it was in the late 18th century. Of course it's risky to allow the Constitution to be amended and reinterpreted, but it's a necessary risk. America in 1780 is not the same country as America in 2010. The Constitution of 1780 wouldn't work in 2010.

06-19-2010, 09:29 PM	#24 (permalink)
G5000 Upright	The USA of 2010 wouldn't exist if it wasn't for the Constitution of 1787.

06-19-2010, 09:55 PM	#25 (permalink)
Willravel ... a sort of licensed troubleshooter.	And we wouldn't exist if not for Rome, but alas I don't wish to be a citizen of an Empire. I much prefer the Republic. The point is, our Constitution is so brilliant, in part, because of its ability to adapt when necessary to the times in order to remain just and serve the people. It can legally adapt by amendment or judicial interpretation. Our judicial system is responsible for a woman's right to decide whether or not she remains pregnant. Our judicial system is responsible for the desegregation of schools.=

06-20-2010, 11:07 AM	#26 (permalink)
Wes Mantooth Junkie Location: Tennessee	I'd have to agree Will, the constitution needs to be able to evolve to truly reflect the world we live in rather then hoping the world we live in reflects the constitution. To rigidly cling to an 18th century document under the guise that the founding fathers were infallible is ridiculous and ignoring the realities of the world around us. Nobody that signed the constitution could have possibly foreseen, with any sort of accuracy, what the US would look like in 2010 and being able to change with the times is something that's helped our country not only stay intact but grow for 230 years. I'll fully admit that a living constitution can be and is a double edged sword. Abuses of the system do happen and we must tread very carefully but to deny it its natural evolution would be foolish. __________________ “My god I must have missed it...its hell down here!”

06-22-2010, 09:37 AM	#31 (permalink)
Sun Tzu Conspiracy Realist Location: The Event Horizon	"Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. --Senator Jacob Howard, Co-author of the citizenship clause of the 14th Amendment, 1866. __________________ *To confine our attention to terrestrial matters would be to limit the human spirit.- Stephen Hawking* Last edited by Sun Tzu; 06-23-2010 at 09:31 AM..