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The Living Constitutionís Double Standard
National Review Online ^ | August 23, 2006 | Jonah Goldberg

Posted on 08/23/2006 5:44:19 AM PDT by Manfred the Wonder Dawg

“We do not insist that our medicine, our technology, or even our entertainment, all remain in an obsolete state; why would we demand that the law be given such treatment? It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the Constitution to reflect improvements in society.”

A year ago, Slate magazine’s legal correspondent, Dahlia Lithwick, recounted this observation — from one of her bounteously sophisticated liberal readers — as a neat summary of the “doctrine” of a “living Constitution.” And a neat summary it is. How droll and obtuse that conservatives think the Constitution should remain anchored against the tides of change while those currents bring with them torrents of newfangled iPods and ever-changing gusts of news; one day about Britney Spears, the next day Paris Hilton. How very horse-and-buggy to suggest that the Commerce Clause wouldn’t change with the latest in slattern chic and personal electronics.

Anyway, that bit stayed in my mind ever since, and I think of it whenever the Constitution comes up in the War on Terror. Just last week was a case in point. Judge Anna Diggs Taylor issued a ruling that even legal scholars who like the outcome consider to be laughable in its reasoning. She held that the government’s Terrorist Surveillance Program is not only illegal but unconstitutional. The program, if you recall, monitors phone calls and Internet activity among al Qaeda members and affiliates without a warrant. The executive branch holds that it has the right to do this under its authority to collect intelligence for national-security purposes. These calls aren’t being monitored for criminal prosecutions but to “connect the dots” and prevent another 9/11.

It may turn out that the TSP is illegal, technically violating the Foreign Intelligence Surveillance Act of 1978, but we wouldn’t know that from Taylor’s decision. She cited almost none of the most relevant cases on the matter, and the upshot of her ruling is that even if Congress wanted to codify in law what the president has been doing under his own authority, it couldn’t because the founders never had any such thing in mind. “There are no hereditary Kings in America and no powers not created by the Constitution,” Taylor wrote, invoking the founders’ intent and betraying her own intent to issue as quotable an opinion as possible for the press.

You do see the irony here, don’t you? A coalition of pressure groups — Greenpeace, the ACLU, and a bunch of left-wing professors — are arguing that the Constitution must be immutably inflexible, adamantine in the face of changing times. The fact that al Qaeda is using new technologies the Founders could never have imagined is irrelevant, say the absolutists. If the government can listen in on bin Laden’s phone calls without a warrant, what’s to keep them from listening to a phone call between me and my aunt Sally?

Isn’t this just a bit hard to take with a straight face from the ACLU, which finds powers not created by the Constitution every day and periodically declares such inanities as the idea that the Constitution forbids teachers from reading The Chronicles of Narnia in class lest the tykes’ young minds be corrupted by hidden messages about Christianity? Such concerns would have left the Founders dumbfounded before the opening prayers of the Constitutional Convention.

Then there’s Greenpeace. Not noted for its abiding concern for constitutional niceties one way or the other, the environmentalist outfit claims that its constitutional rights were violated because the TSP had a chilling effect on its international communications. Had they been in negotiations with bin Laden to keep him from blowing up baby seals?

But, you might ask, aren’t traditional opponents of the living Constitution hypocrites? Liberals normally like their penumbras emanating and their Commerce Clause written in Silly Putty while we conservatives like our Constitution like our beef jerky — cold, dead, tough to chew through. So aren’t conservatives using a double standard, too?

It may depend whom you’re talking about, but I think not. Long before the concept of a living Constitution was hatched, the authors of the original version — as well as the courts interpreting it — understood that the executive branch has the authority and flexibility to conduct foreign policy and wage war. Terrorists may be criminals, but they aren’t merely criminals. They’re waging war against us and doing so in ways never imagined by the founders. They don’t want territory or treaties, and they don’t use armies and cannons. They want to make our own technology and freedoms into weapons they can use against us.

And so here is the real absurdity of the “living Constitution” school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, complete intellectual rigor mortis has set in.


TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: hypocrites; irony; surveillance; wot
My favorite bit - "Liberals normally like their penumbras emanating and their Commerce Clause written in Silly Putty while we conservatives like our Constitution like our beef jerky — cold, dead, tough to chew through."
1 posted on 08/23/2006 5:44:20 AM PDT by Manfred the Wonder Dawg
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To: Manfred the Wonder Dawg

The problem with viewing the Constitution as a "living document" is that living things suffer from disease, ultimately decay and finally die.


2 posted on 08/23/2006 5:46:08 AM PDT by william clark
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To: Manfred the Wonder Dawg
When it comes to keeping our country safe from its enemies, liberals suddenly become constitutional purists. In every other case, they treat it like legal putty. Why the chutzpah!

( No more Olmert! No more Kadima! No more Oslo!)

3 posted on 08/23/2006 5:47:39 AM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: Manfred the Wonder Dawg
"...but we cannot interpret the Constitution to reflect improvements in society.”

What an absurd assumption.
Our society has not improved to the point where existing laws are obsolete.

4 posted on 08/23/2006 5:51:13 AM PDT by WorkerbeeCitizen (We need a maintenance Crusade)
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To: Manfred the Wonder Dawg


5 posted on 08/23/2006 5:51:50 AM PDT by satchmodog9 (Most people stand on the tracks and never even hear the train coming)
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To: Manfred the Wonder Dawg

Let me see, the writers of dictionaries should be able to change the meaning of words and thereby amend the constitution at will.

OOPs, Can't seem to find that method of amendmending the constitution anywhere, nor the implimentation of dictionary publishers as a 4th branch of government.


6 posted on 08/23/2006 5:52:19 AM PDT by ancient_geezer (Don't reform it, Replace it.)
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To: Manfred the Wonder Dawg
It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the Constitution to reflect improvements in society.”

A thorough witch slapping is what this author should have received; technology improvements are physical, real and verifiable. "Improvements in society" are subjective, often illusory and subject to honest and intense debate.

The comparison is absurd.

7 posted on 08/23/2006 5:53:09 AM PDT by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: Manfred the Wonder Dawg
You do see the irony here, don’t you? A coalition of pressure groups — Greenpeace, the ACLU, and a bunch of left-wing professors —

They treat the Holy Bible the same way.............

8 posted on 08/23/2006 5:54:28 AM PDT by yoe
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To: Manfred the Wonder Dawg
The 4th Amendment prohibits unreasonable searches, not all searches. For instance, under specific circumstances the police can enter your home without a warrant.

The judge is a dangerous twit.

For some reason impeachment has earned a bad reputation. What is the big deal about firing someone who proves incompetent in their job? Why are judges effectively immune from losing their job in the face of grossly inadequate and erroneous legal reasoning?
9 posted on 08/23/2006 5:57:39 AM PDT by Jacquerie (All Muslims are suspect.)
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To: Manfred the Wonder Dawg
Terrorists may be criminals, but they aren’t merely criminals. They’re waging war against us and doing so in ways never imagined by the founders

Actually, the Founders had to deal with this problem, too.

The Barbary Pirates were the Islamic terrorists of their day. They siezed vessels, kidnapped, bombed raped and murdered, just as their bretheren do today. President Thomas Jefferson was faced with a trans-national enemy fighting without territorial ambition or traditional armies.

And what did Thomas Jefferson do? He built a Navy, he formed the Marines, and he sent them halfway around the World to kick Islamist butt.

The more things change, the more they stay the same.

10 posted on 08/23/2006 5:59:15 AM PDT by gridlock (The 'Pubbies will pick up at least TWO seats in the Senate and FOUR seats in the House in 2006)
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To: william clark
"When the Consitution means 'anything,' then it means NOTHING."

The Consitution DOES change: In fact, it was written complete with the method of change spelled out within the text. It's called the "Amendment Process."

Something that leftists (or anyone) who claims that we've got a "living Constitution" doesn't seem to understand is that as soon as a group of people are able to change the meaning of the Consitution to something they like, eventually there will be a group of people who change it to something that they won't like.

What other legal document do you think they'd support where the meaning of the words are fungible?

Mark

11 posted on 08/23/2006 6:00:14 AM PDT by MarkL (When Kaylee says "No power in the `verse can stop me," it's cute. When River says it, it's scary!)
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To: WorkerbeeCitizen
Our society has not improved to the point where existing laws are obsolete.

In fact, a good case can be made that our society has downgraded, in the ways that really matter, since the writing of the Constitution.
12 posted on 08/23/2006 6:01:30 AM PDT by JamesP81 ("Never let your schooling interfere with your education" --Mark Twain)
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To: Manfred the Wonder Dawg
It may turn out that the TSP is illegal,. technically violating the Foreign Intelligence Surveillance Act of 1978, but we wouldn’t know that from Taylor’s decision.

This is a crucial point never discussed.
Laws can be unconstitutional, too, but left unchallenged for long allows everyone to lose sight of that reality. Left unchallenged, they can exist for decades.
We must say it out loud and shout it often: laws passed by ignoramuses (constitutionally elected) distinguished only by their plummeting collective IQ, must be challenged immediately and often.

The Foreign Intelligence Surveillance Act of 1978 is probably unconstitutional, but we may finalize that determination way too late to save the probable thousands of US citizens destined to die in the next few years as a result of its "passage". "Mostly" Constitutional just ain't gonna hack it.

13 posted on 08/23/2006 6:05:23 AM PDT by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: Manfred the Wonder Dawg
My favorite bit - "Liberals normally like their penumbras emanating and their Commerce Clause written in Silly Putty while we conservatives like our Constitution like our beef jerky — cold, dead, tough to chew through."

What I find ironic is that most of the complaints I hear about the SC's "living document" doctrine revolve around what people perceive as them interfering with Congress and "the will of the people". The USSC got it's lessons in "living document" revisionism forced down it's throat by FDR and the New Deal Congress, under threat of the Court Packing Bill.

14 posted on 08/23/2006 6:08:02 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: JamesP81
In fact, a good case can be made that our society has downgraded, in the ways that really matter, since the writing of the Constitution.

Througout history that case has been made over and over again.

15 posted on 08/23/2006 6:13:44 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: JamesP81

I agree. I believe that our society has suffered terribly due to mucking with the Constitution.


16 posted on 08/23/2006 6:19:34 AM PDT by WorkerbeeCitizen (We need a maintenance Crusade)
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To: gridlock
The Barbary Pirates were the Islamic terrorists of their day. They siezed vessels, kidnapped, bombed raped and murdered, just as their bretheren do today. President Thomas Jefferson was faced with a trans-national enemy fighting without territorial ambition or traditional armies.

Not entirely correct... There was an element of territorial ambitions, insofar as the de facto governments in selected areas of the Mediterranean and North Africa were controlled completely by these pirates, by means of either large bribes or outright coups.

But, to me, the most important point is this. For the benefit of the morons inhabiting our largest coastal cities, let's repeat...

They siezed vessels, kidnapped, bombed raped and murdered, just as their bretheren do today. President Thomas Jefferson was faced with a trans-national enemy fighting without territorial ambition or traditional armies.

The total difference between then and now is that the pirates, then, never wandered outside they Mediterranean. If you were unlucky enough to have a coastline there, you were vulnerable. otherwise you were unaffected, unless you had vessels in the area.
They did not and could not travel thousands of miles for the sheer pleasure of destroying, without gaining booty at all.
If Jefferson was justified, we are orders of magnitude more so justified.

Overwhelming force underwhelmingly applied is not only a waste, it is national suicide in the most prolonged and painful form.

17 posted on 08/23/2006 6:23:56 AM PDT by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: Manfred the Wonder Dawg

stupid alquedacrats with their rubber constitution


18 posted on 08/23/2006 6:42:39 AM PDT by Big Guy and Rusty 99 ("Conspiracy theories are the products of feeble minds." - A. Horvet)
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To: WorkerbeeCitizen

-Our society has not improved to the point where existing laws are obsolete.-

Exactly! Lefties are so busy creating new laws they never have time to enforce the old ones.


19 posted on 08/23/2006 7:06:27 AM PDT by AmericanChef
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To: Big Guy and Rusty 99

BUMP!


20 posted on 08/23/2006 7:06:31 AM PDT by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: william clark
"The problem with viewing the Constitution as a "living document" is that living things suffer from disease, ultimately decay and finally die."

The Constitution has ALWAYS been a "living document", as it can be amended at any time by its own internal rules. The problem is have the Constitution CHANGED in meaning by "judicial fiat" bypassing the amendment process.

21 posted on 08/23/2006 7:14:14 AM PDT by Wonder Warthog (The Hog of Steel-NRA)
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To: Manfred the Wonder Dawg
"It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the Constitution to reflect improvements in society.”

This person does not seem to understand that the Constitution is "the supreme law of the land," and that laws (and the words that express them) must have a fixed meaning in order for people to properly interpret and obey the law. NEW laws - or constitutional amendments - can be created to reflect changes in society, technology, or public views of morality. To allow judges to impose novel interpretations on the Constitution is fundamentally to abrogate the Constitution.
22 posted on 08/23/2006 7:26:17 AM PDT by Steve_Seattle
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To: Wonder Warthog

I disagree with the application of the term "living document." Just because it can be changed, doesn't make it "living," any more than a house is living because I add a room or enclose a deck. The liberals' use of the term "living" suggests more than the ability to be changed. It implies a constant state of reinterpretation to correspond with whatever is going on in society, with THAT as the standard of what the document should reflect, instead of the other way around.


23 posted on 08/23/2006 9:58:44 AM PDT by william clark
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To: Steve_Seattle
This person does not seem to understand that the Constitution is "the supreme law of the land," and that laws (and the words that express them) must have a fixed meaning in order for people to properly interpret and obey the law.

Oh, they very well do or they would not have to craft the proposition so cleverly.

"It seems absurd to suggest that we can change the speed limit (by voting) to reflect improved technology but we cannot interpret (by judical fiat) the Constitution to reflect improvements in society.”

You don't come up with such apples-to-oranges arguments without considerable thought, and a good understanding of what you want to bait and switch: In this case law change by vote in exchange for law change by judical fiat.

24 posted on 08/23/2006 10:08:25 AM PDT by slowhandluke (It's hard work to be cynical enough in this age)
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To: william clark
"The liberals' use of the term "living" suggests more than the ability to be changed. It implies a constant state of reinterpretation to correspond with whatever is going on in society, with THAT as the standard of what the document should reflect, instead of the other way around."

Disagree. The Constitution IS under a constant state of scrutiny, and can be amended at any time. That makes it a "living document". "Magna Charta" is an example of a "non-living" document.

25 posted on 08/24/2006 5:10:06 AM PDT by Wonder Warthog (The Hog of Steel-NRA)
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To: Wonder Warthog

You're missing my point. There is a difference between a document that is constantly scrutinized and CAN be amended at any time by a specified process, and a philosophical presumption that it SHOULD constantly be reinterpreted based on societal evolution. In other words, the "living document" view puts the cart in front of the horse and renders the document essentially worthless by making it subject to cultural whim rather than firmly establishing the principals on which said society is to function.


26 posted on 08/24/2006 5:50:55 AM PDT by william clark
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To: william clark
"You're missing my point. There is a difference between a document that is constantly scrutinized and CAN be amended at any time by a specified process, and a philosophical presumption that it SHOULD constantly be reinterpreted based on societal evolution. In other words, the "living document" view puts the cart in front of the horse and renders the document essentially worthless by making it subject to cultural whim rather than firmly establishing the principals on which said society is to function."

I'm not missing the point at all. Your point is simply wrong. I pointed that out in the original post. It is the LIBERALS who are mis-using the term "living document" by re-defining it as "constant re-interpretation". But the liberals "do" love to re-define language's meaning.

27 posted on 08/24/2006 7:03:48 AM PDT by Wonder Warthog (The Hog of Steel-NRA)
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To: Wonder Warthog

I stand by my statements. "Living" implies a state of entropy that should not exist with the Constitution. You disagree, take it up with Webster.


28 posted on 08/24/2006 10:50:06 AM PDT by william clark
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