The Living Constitution vs. Original Public Meaning
I’m always amazed by how many Americans completed their educations while believing that the job of the U.S. Supreme Court is to interpret the Constitution and that this means “to figure out what the Founders intended.” Those who were paying a bit more attention, or who took political science classes in college, often know that there are different ways to interpret the Constitution.
There are a lot of different interpretive models, but I’m going to focus on two: “the living Constitution” and “original public meaning.” “The living Constitution” became popular in the mid-1930s in response to the U.S. Supreme Court’s stubborn refusal to approve some of the regulatory measures that the Roosevelt administration thought necessary to revive the U.S. economy. The concept goes back to a decision written by Justice Oliver Wendell Holmes, Jr. in Missouri v. Holland (1920), in which the power of Congress to make international treaties collided with the Tenth Amendment’s reservation of powers to the states.
Justice Holmes explained that when it came to “the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.” (“Master, it’s alive!”) Holmes decided that the decision had to be made “in the light of our whole experience and not merely in that of what said a hundred years ago.”
Holmes was honest enough to realize that Art. VI, which makes “all Treaties … the supreme Law of the Land,” had been superseded by the later Tenth Amendment. Did a treaty for the protection of migratory birds take precedence over an amendment that Congress passed and the states had ratified? Either the Constitution was a contract between the generations — in which case the Constitution needed amending to take away authority of the states over migratory wildlife — or judges could just ignore these silly little amendments that just got in the way of something really important.
Why is the Constitution a “contract between the generations”? Art. VI declares that the Constitution is “the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Art. I includes a list of powers granted to Congress (and not a very long list, at that), a list of powers denied to Congress, and a list of powers denied to the states. Art. V provides a mechanism for amending the Constitution. Its presence is a reminder that when the people ratified the Constitution, it was understood that the government it created was limited.
In exchange for giving more power to the national government than it had previously, there are rules that everyone (national government, state governments, and individuals) has to play by — and you don’t get to change the rules on a whim. (And yes, I mean you, Justice Holmes.) Otherwise, Art. I would have been considerably shorter, and we wouldn’t have that pesky Bill of Rights telling the national government: “Nope! You can’t create a national church. Nope! You can’t require licenses to print newspapers!”
Some of you probably had teachers that told you the “strict constructionists” on the Court were reactionary barriers to necessary reforms. Roosevelt called them “the horse-and-buggy court.” The reactionary “horse-and-buggy court” ordered new trials holding that “a defendant should be afforded a fair opportunity to secure counsel of his own choice” because they were holding America back. But they were hardly the reactionaries that many liberals back then (and now) imagined. The Scottsboro Boys were nine black men and boys accused of raping two white women and sentenced to death, either without benefit of lawyers or appointed so close to the trial date as to be useless.
Some anarchists were convicted for flying a red flag as a sign of revolution in violation of California law. On appeal to the U.S. Supreme Court, they argued that states could not violate their freedom of speech by criminalizing the flying of a flag. Those reactionaries on the Court in Stromberg v. California (1931) agreed.
The “nine old men” (as some liberals called the Supreme Court in the mid-1930s) were committed to a contract between the generations, not a living, breathing, constantly mutating Constitution. They struck down many laws that showed that they were not simply changing the rules of the game to suit their personal preferences. By contrast, the “living Constitution” theory became a method for superimposing the personal policy preferences of a majority of the Supreme Court over what the Framers intended. Throughout the period since West Coast Hotel Co. v. Parrish (1937) upheld a state law that required employers to discriminate against women (a very popular liberal cause at the time), the “living Constitution” model has been the excuse for both ignoring original intent and skipping the more demanding task of amending the Constitution when needed.
“We, the people of the United States”. Do you know what it means? That, the “living constitution” theory, ie allowing a two dozens a dime judge to stretch it beyond what the people agreed to, is at best BS and at worst undemocratic and seditious. Enough said.
TO: Clayton E. Cramer
RE: It’s Worse….
….than you think.
Case in point, Reynolds v. Simms, SCOTUS (1964), the misnomered ‘One Man/One Vote’ ruling.
Why is it a disaster?
Because it destroyed the legislative balance of power, i.e., think checks and balances, between metropolitan and rural areas in every state in the Union.
How?
By saying that instead of having a version of the Great Compromise that established our House of Representatives and Senate we enjoy at the federal, all state senates must be elected based on population.
This means that in Colorado, 17 of the 35 seats in the Colorado State Senate are held by the Denver metropolitan area. Throw in Boulder, Fort Collins and Colorado Springs and the metro areas of the state hold 21 of the 35 seats.
Why is this important?
Consider the situation of the allocation of resources.
Then again, consider Advice and Consent in the appointment of state district court, appellate court and supreme court judges.
Right now, an important aspect of the rural areas is water. And the Denver area is sucking as much up as they can.
Unless this egregious violation of the ‘original public meaning’ as overthrown by an activist US Supreme Court, everyone might as well move to Denver in the next 50 years.
Regards,
Chuck(le)
[Our safety, our liberty, depends upon preserving the Constitution of the United States as our fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution. -- Abraham Lincoln]
Those who adhere to the concept of a living constitution believe they know what is best—and will find one way or another to shove it down our throats. They approach language in a postmodernist manner. The meaning of words will be arbitrarily interpreted to help arrive at the desired conclusion. A society is doomed if this becomes the norm. We will have devolved to a prehistorically savage existence. None of us will be safe.
The supremes have only one job, determine if the law being presented is unconstitutional. if they find that the law is unconstitutional, the law is revoked and the case is sent back to the legislature so that the people will can be heard and the law modified. For too long, the liberals in this country abetted by the craven members of the legislature have used the courts to bypass the people. The supremes have no authority to create ‘rights’ or laws. we need a leader in the mold of andrew jackson who told the supremes, you created the law, you can try to enforce it.
You’re deeply confused about the origin of the constitution, and the origin’s of the Supreme Court’s interpretation of it. First, anyone who indeed took political science in college–most likely very few of your readers–should know that the constitution, more than anything represents political pragmatism over any cogent philosophy, or even set of ideas. James Madison argued for a powerful, unitary executive only months before he wrote Federalist essays praising the wisdom of a weak executive. And the Supreme Court’s interpretation of the constitution begins within the era of the founders, only scant decades after the constitution was ratified, with McCullough vs. Maryland. One of the greatest implications of that decision was the finding that the congress has implied powers that go beyond what is enumerated in the Constitution.
And, of course, the kind of reasoning process you’re implying is like a kid trying to interpret his first walk to school by reading the note given to him by his mother, and referring only to that, to make all decisions. There were obviously things mommy couldn’t have foreseen. And she might even have been wrong about some things, given that she wrote it on the phone. Now go get your shinebox.
Yup.
Now whats truly strange is the same types are offended by jury nullification.Wonder why?
Must be because it might be “all about them”.When was being a Supreme Court Justice the
same as a rock-star? We have hundreds of “Look at me,I’m a rock-star” laws on the books,
that today seem stupid,quaint or out of date,all because someone wanted to get noticed
and be that days “rock-star”.Most people are unaware that today you cannot get a jury
trial for some types of lesser violations,wonder why?
If you really want some fun, go to any court and suggest to said justice,that it is your
bench,and that you allow him/her to be sitting there on your approval.
So,how long do I have to wait to see on TV when a judge jumps from the bench,spikes the
gavel and shouts “Woooo, I changed the law!” looks at the camera and says “Hi,mom!”?
You can take a border line dolt,and give him/her years of law school but,that does not make
him/her another Daniel Webster.
Yeah, dude. The Scotus hasn’t broken free of that constitution thing yet. That sux. They need to ditch that constitution and go for redistributive change.
And the Supreme Court’s interpretation of the constitution begins within the era of the founders, only scant decades after the constitution was ratified, with McCullough vs. Maryland. One of the greatest implications of that decision was the finding that the congress has implied powers that go beyond what is enumerated in the Constitution.
Yes, but they are still limited powers, so the scope for going beyond the enumerated powers is subject to constraints.
http://openjurist.org/17/us/316
The court has bestowed on this subject its most deliberate consideration. The result is a conviction that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.
This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional.
You will find plenty of examples where later Courts have viewed ideas such as Freedom of Speech in manner which protects sites such as this one. Remember that once the Supreme Court thought the Sedition Act as a fair interpretation of Freedom of Speech. While the Sedition Act was allowed to laps very soon after it had been made law, the Constitutionality of said acts wasn’t nullified until the 20th century. To my mind, this is an example where both the premise of Cramer’s commentary on “living Constitution” shows fault as does Moho’s on “pragmatism”.
@Moho, the Constitution, it’s Amendments and the Bill of Rights are meant to be pragmatic within the context of restraint. This restraint is put in place to forbid pragmatic solutions when they restrain individual liberties. It is often times more pragmatic to restrain a suspect and let them sit in prison while evidence is found. Perhaps it would be pragmatic to hold a number of suspects for any given case until it is solved. This pragmatic solution is unacceptable under the Constitution, even if our crime rates were to rise and rise while some judges might think our Freedoms are it’s cause. One thing the Constitution does not forbid is ad hominum attack. It is not forbidden under the law, but it would certainly be frowned upon in debates in venues where a quality Political Science class would be taught. Perhaps you should reacquaint yourself with the term “logical fallacy”.
Right on, Clayton. The people own the congress and the courts.
Hey Moho: I took political science in college, graduated from the Harvard Law School 33 years ago and in my law practice have litigated and argued constitutional cases. You need to shed the arrogance.
Criticism of the “living Constitution” theory of interpretation, as appears in the Cramer article above, is in order as allowing judges to interpose personal political preferences to override laws enacted by democratically elected branches of government. The recognition of implied powers under McCullough v. Maryland does not justify the way that the “living Constitution” theory has too often been invoked.
Moho:
I think this is the first time I agree with you on one of your statements. The origins falling under some pretext of political pragmatism, I agree with you. The founders guarded against the tyranny of the left and the anarchy of the right. I disagree with your statement that somehow McCollough vs. Maryland was some revelation that congress had powers that were not forseen by the founders. The founders wrote extensively about democracy being transitory. They new that each branch would reach beyond its powers enumurated by the constitution. The pragmatism lies in Nature’s Law or God’s Law.
Without virtue, the constitution lies in peril. The founding fathers knew this, they warned against this day. We are on the path to tyranny. Unconstitutional wars to executive czars, the executive branch and legislative branch are not doing their duties. They are corrupt.
Anytime some judge says something like “We have a living constitution” it translates to “Gee we really don’t want to follow the law, so we’re just going to ignore it”.
The Constitution is what We the Court say it is.
The founders guarded against the tyranny of the left and the anarchy of the right. I disagree with your statement that somehow McCollough vs. Maryland was some revelation that congress had powers that were not forseen by the founders.
This is not a view supported by history. There may have been some philosophical underpinning to some of the articles of the constitution, but most of it was an attempt to satisfy a dozen or so self-interested independent actors [states] mostly interested in maintaining their economic and social way of life. The best way to convince all the actors to log on to the new country was to set a general set of rules, based conceptually and negatively on the loss of rights during the waning years of British control and, less importantly, on philosophies of individualism and society popular among elites at the time. Most importantly, the constitution sought to ensure that the status quo that was eventually settled was made incredibly difficult to change through a series of checks and separation of powers.
Thus, what the founders intended was to satisfy concerns that make sense only in the context of the colonial period, and to make sure, in order to convince 9 states to sign on to the new body, that that the new regime was nearly immutable. In that sense, the founders intended to make a colonial sausage. Its manifestly asinine to expect to live out the rest of eternity on a series of rules based on 18th century political pragmatism, and indeed capitulation to some of the most evil ideas and acts ever predicated by humans, in terms of slavery. The founders got some things right, freedom of speech, worship, etcetera, and some things horribly wrong–like state controlled federalism, which made sure that slavery could only be abolished by war. The evil of slavery is no mere by-product or footnote to history. The failure of the constitution to end slavery is the over-arching theme of American history.
I thank god we have a Supreme Court. Without it, I doubt I’d have the right to vote or even insult the largely white audience that clings like a fungal growth to these marginal bastions unfocused rage. Perhaps that’s why you all seem to have so much antagonism for it.
The Constitution means the same today as it did 1789 when is was ratified. There is no such thing as a “Living Constitution”!!!! All those Socialist Democrats are WRONG!!! We the people run this country, not an egotistical oligarchy!!!!
Want to change the Constitution? Amend it.
MOJO
There’s no problem. I was just hoping
you could give me some insight into
the evolution of the market economy in
the early colonies. My contention is
that prior to the Revolutionary War
the economic modalities especially of
the southern colonies could most aptly
be characterized as agrarian pre-
capitalist and…
P. Ami, who at this point has migrated to Mojo’s side and is
completely fed-up, includes himself in the conversation.
P. AMI
Of course that’s your contention.
You’re a first year grad student.
You just finished some Marxian
historian, Pete Garrison prob’ly, and
so naturally that’s what you believe
until next month when you get to James
Lemon and get convinced that Virginia
and Pennsylvania were strongly
entrepreneurial and capitalist back in
1740. That’ll last until sometime in
your second year, then you’ll be in
here regurgitating Gordon Wood about
the Pre-revolutionary utopia and the
capital-forming effects of military
mobilization.
MOJO
(taken aback)
Well, as a matter of fact, I won’t,
because Wood drastically underestimates
the impact of–
P. AMI
–”Wood drastically underestimates the
impact of social distinctions predicated
upon wealth, especially inheriated
wealth…” You got that from “Work in
Essex County,” Page 421, right? Do
you have any thoughts of your own on
the subject or were you just gonna
plagerize the whole book for me?
How you like them apples?
P. Ami. I’m only taken aback by your stupidity. You’ve made no argument. I’m not in school, but I did listen during the lectures when I was. I’m pretty sure I know more about the history of this country and its political discourse than you or anyone else here. And trust me, that’s no compliment to me, but only insult to the level of ignorant stupidity that’s obvious to anyone with two brain cells to rub together. Now go get your shinebox.
Most of the problems I’ve had in my slightly less then average lifespan were due to the attentions of someone who knew what was good for me. And they sure as ‘ell were determined to make sure I did what was good for me. The bedrock principal of all conservatism is that I know what is good for me just as you know what is good for you. MOST of the time if we both do what is good for our selves, it will end up being good for both of us. On those occasions were we differ, lets talk about it.
“The people who are regarded as moral luminaries are those who forego ordinary pleasures themselves and find compensation in interfering with the pleasures of others.”
– Bertrand Russell
Its manifestly asinine to expect to live out the rest of eternity on a series of rules based on 18th century political pragmatism, and indeed capitulation to some of the most evil ideas and acts ever predicated by humans, in terms of slavery.
Now that you’ve convinced yourself of that, your only remaining task is to convince enough people to amend it to reflect your preferences. Thankfully, there’s freedom of speech to enable you to try. Unfortunately for you, I doubt you’ll succeed.
And, in the grand scope of history, American slavery is a minor thing. The much more important outcome of American history is what Lincoln said about government of the people, by the people and for the people. The fact that “the people” was a definition in flux for some time is of secondary concern relative to the principle itself.
Want to change the Constitution? Amend it!
And, of course, Veni as always, your retort is based on one sentence from my post. And, yes, in the course of human history slavery may have been a minor thing, not in the American part of human history. What kind of idiot would even attempt to make such a nakedly diverting move. Are we talking about the constitution of humanity, or of the United States. Finally, the fact that the most devastating war in US history had to be fought to arrive at a just definition of that principle makes its of absolutely primary concern. Only someone completely unable to understand reason would aver that a century of slavery and a catastrophic war that then brought on a debilitating depression and one hundred years of apartheid was of secondary importance. Total douche. And please, respond with a whiny tear-soaked complaint about how strong language offends your delicate constitution. I so enjoy watching chicken-hawk sissies like you cry.
I’m pretty sure I know more about the history of this country and its political discourse than you or anyone else here.
As Reagan said (paraphrasing), “It’s not what our friends on the Left know, it’s what they think they know that isn’t so, which is the problem”.
Your interpretation of the history of this country and its political discourse is skewed by a worldview that has no purchase outside of the coterie of its progenitors and their acolytes. Your assertion is like a Swedenborgian saying he knows more about the Arcana Coelestia than anyone else. Yeah, so? You’re a “top-down” wanna-be gauleiter who should move to Burma if that form of governance is so attractive to you. I’m sure they’d be thrilled to have a Westerner give their regime some “credibility”. You f*cking dick.
And please, respond with a whiny tear-soaked complaint about how strong language offends your delicate constitution. I so enjoy watching chicken-hawk sissies like you cry.
I’ve never posted a single complaint about strong language. That’s not something that bothers me a bit, actually. I’m from the poor part of a poor city, nothing you could say would be anything I haven’t heard before. As for your ability to make me cry, dream on, hoss.
Finally, the fact that the most devastating war in US history had to be fought to arrive at a just definition of that principle makes its of absolutely primary concern.
Civil wars are always the worst. That’s why I don’t necessarily relish the upcoming one. Anyway, the Civil War needn’t have been fought, as mechanization was already well on it’s way to making slavery obsolete. The fact that Lincoln could actually ascribe the war to “Uncle Tom’s Cabin” when he met H.B. Stowe (the “little lady” who caused the “big war”) shows how fundamentally sentimentalistic the entire episode was.
And, yes, in the course of human history slavery may have been a minor thing, not in the American part of human history.
I’m sure the freedmen of Rome felt their former slavery wasn’t a “minor part” of Roman history. They learned to deal with the fact that the remainder of the Roman population didn’t hold that same view. I suggest you take a break from studying American history and read some Roman history to see how a mature society made up of men and not pansy-boys like yourself deals with slavery.
“Justice Holmes”
…is the lowlife scumbag who came up with that “clear and present danger” crap, which allowed the loathsome liberals of the Wilson administration to ignore the 1st amendment and throw anti-war people in prison simply for expressing their political viewpoints.
All the more disgusting, the people who were jailed, thanks to Holmes, were correct in what they said: military conscription is involuntary servitude, and involuntary servitude (except as punishment for a crime) is a violation of the 13th Amendment. For daring to tell the truth, anti-war loons (wrong about everything else, right about the draft) were thrown into prison, while the “liberal” government enslaved hundreds of thousands of young men and sent them to fight in Europe.
That’s what you get with a “living constitution”: two amendments to the Constitution ignored, tyranny, slavery, and 100,000 Americans killed in a senseless war in Europe as a little side benefit.
Thanks, but you can keep your “living constitution”, I prefer the written one (despite its many flaws)…and if ever I pass Holmes’ grave I intend to spit on it.
“Holmes was honest enough to realize that Art. VI, which makes “all Treaties … the supreme Law of the Land,” had been superseded by the later Tenth Amendment.”
Good article overall, but that particular statement is not correct.
This part of Article VI
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
…is not affected by the 10th Amendment.
It is, however, one of the worst parts of the Constitution, and should be anmended to read
“This Constitution, and the Laws (including treaties) of the United States which shall be made in Pursuance thereof; shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”
As currently written, Article VI appears to give treaties equal weight to the Constitution, whether said treaties are in accord with the Constitution or not…and that is way, way, way wrong.
This needs to be corrected. Should have been done 200 years ago.
The point is that the Constitution can be amended and must be amended if nontrivial changes to our system of government are to be made (a trivial change would be that Congress has the power to raise an Air Force. That power is not explicitly granted in the Constitution, but it follows logically from empowering them to raise an Army and a Navy- it maintains the spirit of the Constitution as technology develops and alters the way wars are fought).
I’ve yet to see you make an argument for my stupidity.
Interesting that you’re convinced that anyone looking at this site must not know history as well as you do. What scientific survey can you site? The only evidence you bring in support of your contention is that we disagree with you. Rather a circular argument, wouldn’t you say? Your latest response to Veni is packed with “poisoning the well”, ad hominum attacks, and at least two straw man arguments, all this in nine sentences. I suppose there is some level of skill in such an accomplishment but it certainly lacks points worth responding to in anything but dismissive posts. You are not here to argue. You are here to salve some psychic issues that don’t deserve the interest your narcissism expects. Tootles.
Want to change the Constitution? Amend it!
“I’m pretty sure I know more about the history of this country and its political discourse than you or anyone else here.”
Let me guess. You’ve skimmed through the comic book version of “A People’s History of the United States”?
You want to change the Constitution? Amend it!
“The supremes have only one job, determine if the law being presented is unconstitutional. if they find that the law is unconstitutional, the law is revoked…”
I dunno. I don’t see any enumerated power in the Constitution that gives supreme court judges the power of “judicial review”. Having considered Articles III, VI and the 10th Amendment, I’d say that nullifying laws (in a courtroom setting) is a power reserved to juries.
I’ve yet to see you make an argument for my stupidity. What scientific survey can you site?
Argument #1
Well, the duty of the courts is to settle disputes over the laws, and the Constitution states that the Constitution is the supreme law of the land, followed by treaties, followed by federal laws (in their proper jurisdiction), followed by state laws, and municipal laws are at the bottom. If two laws conflict, the higher one has priority and the lower is unenforceable.
I remember my friends on the left being very upset, complaining bitterly that G. Bush had been effectively elected by the Supreme Court in 2000. Myself? I gave it some thought and began to appreciate how and why the right wing had been so upset with that very same court during the previous forty years. My friend (a lawyer) always tells me that when no one really wins…its a fair decision. Something to ponder for this non-lawyer person I guess…
“This is what it really means!”
“No! THAT is what it really means!”
Almost all of you are treating it as a ‘living, breathing’ document.’
Personally, from my readings of their own works and in their own words, I think the Founders said what they meant and meant what they said.
It is also readily apparent that we aren’t paying any attention to what they said about matters (We ‘forgot’ to read the owner’s manual) and now the danged thing’s busted all to hell on us.
How’s about finding out what the original authors really said about all of it in their own words?
The machine is completely busted. We need to go back to the factory and remanufacture it. Just as well start with the original blueprints and go from there.
Cherry-picking quotes from ‘case law’ ain’t gettin’ things fixed.
“Without it, I doubt I’d have the right to vote or even insult the largely white audience that clings like a fungal growth to these marginal bastions unfocused rage.”
Huh? Which court decisions gave blacks the right to vote? Free blacks were voting–and elected a free black to the Maryland legislature in the 1640s. Free blacks were voting in some Northern states before the Civil War. The 15th Amendment granted free black men the right to vote throughout the U.S. None of these were the result of Supreme Court decisions.
“This is not a view supported by history. There may have been some philosophical underpinning to some of the articles of the constitution, but most of it was an attempt to satisfy a dozen or so self-interested independent actors [states] mostly interested in maintaining their economic and social way of life.”
Oddly enough, the Constitution provides for it to be ratified by conventions elected by the people–not by the state legislatures. Rather a strange strategy if the goal was satisfy state governments.
USSC didn’t help me! If you want to change the Constitution, Amend it!
Cramer, you’re pretty dumb. If the conventions were state by state, not elected by popular national vote. Then it was a state by state referendum. Furthermore, if nine states were the only ones needed to ratify the document, indeed, if Rhode Island would have been one of only nine states–then it was the will of the states, not the will of the people. This is pretty simple math–I shudder to wonder what you do for a living.
“TO: Clayton E. Cramer
RE: It’s Worse….
….than you think.
Case in point, Reynolds v. Simms, SCOTUS (1964), the misnomered ‘One Man/One Vote’ ruling.”
I am well aware of it. (I’ve taught Constitutional History.)
If there is enough interest in the subject of how the living, breathing, constantly mutating Constitution got the way that it is, I will be writing a bunch more articles about how the Court has scrambled the original meaning of the Constitution.
“Cramer, you’re pretty dumb. If the conventions were state by state, not elected by popular national vote. Then it was a state by state referendum. Furthermore, if nine states were the only ones needed to ratify the document, indeed, if Rhode Island would have been one of only nine states–then it was the will of the states, not the will of the people. This is pretty simple math–I shudder to wonder what you do for a living.”
You might benefit from reading some of the scholarly history of the Constitution’s adoption. The decision by the Philadelphia Convention to require popular conventions to ratify was to avoid the problem that the state legislatures were jealous of giving up their power to the new, more powerful national government. Pretty clearly, the Framers were not as worried about the people, even organized on a state by state basis, as they were about the existing legislative bodies, with the interests that they represented.
I notice that you still haven’t given any examples of how this living Constitution theory gave you the right to vote. That’s because you have no such examples. The 15th Amendment extended the vote to black men. The 24th Amendment abolished the poll tax which had been used to discourage (although directly prohibit) blacks from voting. Both of these were passed by 2/3 of Congress, and ratified by 3/4 of the states. The Voting Rights Act of 1965 used Congressional authority under the 15th Amendment to stomp on various discriminatory practices by the Southern states. This was passed by Congress–not the result of a “living Constitution.”
Sorry, Cramer. When I asked you if you were really this stupid, I meant the question rhetorically. I didn’t ask you to embarrass yourself by proving it.
Reporting from Washington — The Supreme Court narrowed, but did not overturn, the historic Voting Rights Act today, ruling that municipalities across the South that have had a clean record for the last decade can seek an exemption from the law.
The decision came as a relief to civil rights advocates, who feared the high court was prepared to invalidate the law.
http://articles.latimes.com/2009/jun/23/nation/na-court-voting-rights23
41. Moho: – you’re pretty dumb.
That’s absolutely priceless, coming from a sniveling troll who’s already been caught lying, outright, about Madison’s philosophy.
Your credibility on this topic is less than nonexistent, putzie. Do keep on posting though – every day you provide new evidence showing how depraved, deranged and detached from reality the apoplectic, moral adolescents of left have become.
If you want to change the Constitution, amend it!
And how, exactly, does this support your claim? It is the living Constitution crowd that is usually arguing for why the courts should overturn legislative acts (Romer v. Evans, Lawrence v. Texas, Roe v. Wade, Moore v. East Cleveland, Ginzburg v. U.S. among many others). And oddly enough, all the living Constitution justices voted with the originalist justices on this. This was a unanimous decision. It might still be wrong, but it shows that you are responding to an argument about apples v. oranges with a discussion of zebras.
Now, an originalist would certainly agree that the Court should overturn a legislative act if it was clearly contrary to the Constitution. But it is the living Constitution crowd that is usually arguing to overturn Congress, the state legislatures, or even the people directly amending the state constitution (as in Romer v. Evans).
If you want to change the Constitution, amend it!
But that would require 2/3 of both houses of Congress, and 3/4 of the states. The left seldom even has a bare majority on any issue, much less the consensus required to amend the Constitution. The only place where the left consistently enjoys the supermajority required is on college campuses, in the newsroom, and in multimillionaire country clubs.
Well, the duty of the courts is to settle disputes over the laws, and the Constitution states that the Constitution is the supreme law of the land, followed by treaties, followed by federal laws (in their proper jurisdiction), followed by state laws, and municipal laws are at the bottom. If two laws conflict, the higher one has priority and the lower is unenforceable.
The problem with this claim, with respect to Missouri v. Holland (1920), is that the claim of Missouri was that the state’s rights under the Tenth Amendment were being violated. The Tenth Amendment, having been passed after the rest of the Constitution, takes precedence over Art. VI, in the same way that the 13th Amendment abolition of slavery takes precedence over Art. IV, sec. 2, which guarantees the return of persons “held to Service or Labour in one State.”
TO: Clayton E. Cramer
RE: I’d….
…be VERY interested in seeing such articles.
It would help me in beating ‘idiots’ in Constitutional Law over their stupid heads.
Had an encounter with one such from Denver University in the 1990s. She was addressing the monthly General Meeting of the Denver Chapter of Mensa. We took her appart, piece by piece over HER concept that there were no such thinks as ‘Constitutional Rights’. She proposed that all rights were “textual”. The idea being that you change the text and you can get rid of the ‘right’.
Regards,
Chuck(le)
[Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. -- James Madison]
P.S. I do believe that that idea was EXACTLY what that silly, nefarious woman was proposing…..
Goy, you’re almost as stupid as Cramer. Did it ever occur to you, when you were catching me “lying” about Madison, that this part actually proves my point:
and that relief is only to be sought in the means of controlling its EFFECTS.”
Nice try, idiot.
TO: Clayton E. Cramer, et al.
RE: Changing It
Heh….
…but the ‘problem’ is that NOW, based on Reynolds v. Simms SCOTUS (1964), the state senates are populated by ‘liberals’. See my comment at item #2 of this thread.
Regards,
Chuck(le)
[Anyone getting a 'clue' here?]
“The Tenth Amendment, having been passed after the rest of the Constitution, takes precedence over Art. VI…”
No, you’re simply wrong about that.
This…
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
in no way affects this…
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The power to make laws (pursuant to the Constitution) and treaties IS a power delegated to the United States…and the tenth amendment doesn’t change that one little bit.
At least not as far as I can see (which I hope is pretty far).
Goy…continued. Now go get your shinebox. Loser.
@51. Moho: – Did it ever occur to you, when you were catching me “lying” about Madison, that this part actually proves my point…
Not at all. Since it does nothing of the kind.
Or, now – in addition to intentionally lying about his statement – are you going to continue to lie by claiming that Madison intended to redistribute wealth when he’s already stated clearly that – as a CAUSE of faction – unequal distribution of property “cannot be removed”.
That was a rhetorical question. And you’re welcome to embarrass yourself further. I must say, I haven’t seen a troll as deranged as you in a very long time. Keep up the entertainment.
If you want to change the Constitution, amend it!
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
in no way affects this…
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The power to make laws (pursuant to the Constitution) and treaties IS a power delegated to the United States…and the tenth amendment doesn’t change that one little bit.
If this was the case, Justice Holmes would have written exactly that in Missouri v. Holland. It was precisely because the Tenth Amendment was later, and thus overrode Art. VI authority, by guaranteeing certain powers to the states, that Holmes had to create this “living” Constitution claim.
The power to make laws (pursuant to the Constitution) and treaties IS a power delegated to the United States…and the tenth amendment doesn’t change that one little bit.
Let me give another example: Congress has authority to make laws, including regulation of interstate commerce. Let’s say that they make a law that prohibits selling any book, magazine, or newspaper that moves in interstate commerce that carries articles claiming that the Iraq War was a terrible mistake. But guess what? The First Amendment declares that Congress may pass no law abridging freedom of the press. By your reasoning, the First Amendment doesn’t limit Congressional authority to make laws like that.
…but the ‘problem’ is that NOW, based on Reynolds v. Simms SCOTUS (1964), the state senates are populated by ‘liberals’. See my comment at item #2 of this thread.
Speak for your state. That isn’t the case in Idaho. One of the problems is that making state senates more representative of the population meant that liberals (who are a big chunk of the population) elect liberals. Reynolds v. Simms was wrongly decided, but don’t blame this for the dominance of liberals. Liberals are dominant because they are about 25% of the population, and a disproportionately rich fraction at that.
“By your reasoning, the First Amendment doesn’t limit Congressional authority to make laws like that.”
Nope, that has nothing to do with my reasoning. In theory, the federal government can’t make any law that infringes on freedom of speech/press (which they ignore all the time anyway…see the Smith Act for an example) because they are directly forbidden to do so by the First Amendment. That has nothing to do with the relationship between Article 6 and the Tenth Amendment.
The Tenth amendment is no bar to the United States government passing any sort of treaty they want, because the United States government has an enumerated power to make treaties.
The Tenth Amendment says that the federal government can’t exercise powers unless they’re enumerated (because powers that aren’t enumerated belong to the states, unless they are forbidden to the states, or to the people), and that’s all it says. There is nothing in there that stops the feds from exercising any ENUMERATED power (like making treaties, or laws that regulate interstate commerce).
You’re article is a good one, but you’re wrong on this one issue.
The problem with Article 6 is that because of the way it’s worded, the federal government can make a treaty that does NOT conform with the Constitution (unlike other laws that must be in pursuance)…and that’s a bad idea, and the Constitution should be amended so that it clearly states that treaties, like other laws, must be in pursuance to the Constitution.
I hate it when I say “you’re” when I mean to say “your”.
The Tenth Amendment says that the federal government can’t exercise powers unless they’re enumerated (because powers that aren’t enumerated belong to the states, unless they are forbidden to the states, or to the people), and that’s all it says. There is nothing in there that stops the feds from exercising any ENUMERATED power (like making treaties, or laws that regulate interstate commerce).
I see the point that you are making, and it makes sense. But it is strange that Justice Holmes didn’t make that argument, to avoid the issue that Missouri was raising about Tenth Amendment precedence. Perhaps there was something in Missouri’s briefs that demonstrated that the Tenth Amendment did therefore take precedence over treaty making authority.
TO: Clayton E. Cramer
RE: Speaking to the State
Idaho has more people living in rural areas than in metro ones. Look at Boise and compare IT’S population to the rest of the state.
Yeah. Rural states are better balanaced. But no thanks to the SCOTUS.
Regards,
Chuck(le)
P.S. My point still stands that going for a constitutional convention, or some amendment, will be decided by liberals as opposed to the whole population. All because of Reynolds v. Simms SCOTUS (1964)….
My point still stands that going for a constitutional convention, or some amendment, will be decided by liberals as opposed to the whole population. All because of Reynolds v. Simms SCOTUS (1964)….
To the extent that Reynolds v. Simms forced state senates to be proportional to the population, it means that urban liberal populations are now represented in proportion to their fraction of the population. I would prefer that there not be liberals, but they do exist, and the net effect of Reynolds was to make sure that they were equally represented.
“I see the point that you are making, and it makes sense.”
Yes it does, if I do say so myself.
Now, compare and contrast what I’m saying with what Holmes is saying in Missouri v. Holland and see who’s talking sense and who is talking liberal. totalitarian, l’etat c’est moi nonsense…
“Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. Carey v. South Dakota, 250 U.S. 118 , 39 Sup. Ct. 403.”
“Decree affirmed.”
Now, compare and contrast what I’m saying with what Holmes is saying in Missouri v. Holland and see who’s talking sense and who is talking liberal. totalitarian, l’etat c’est moi nonsense…
I agree with you. But it seems odd that Holmes would have missed such an easy way to avoid having to take the approach that he did.
The Constitution does not grant powers to various branches of Government, lets start with this incredibly important and apparently overlooked aspect.
The Constitution sets restrictions upon govt, and outlines what each branch responsibility was.
The constitution never, ever, grants rights to individual or otherwise. This is highly important to remember and the bedrock of our freedoms.
Ann Coulter said it best when she said the Supremes were not interested in the Constitution, they see themselves as Philosopher Kings.
Is anyone interested in doing something about this? There is a simple easy to follow ten questions that anyone can ask any public servant to verify their oath of office and then indict them, sue them and even arrest them. But it seems you are more interested in complaining and yapping then actually solving the problem. If you are one of the one percent then go to therealpublicradio.net, go to “program schedule” click on wed. go down to 6:00/3:00 click on left column “contract” down load file print two copies and get er done, do your little part. Make a difference. All the best to the rest, a hug just because, reserving all powers, Colin Derek
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