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Ad for new PBS show "Constitution USA" (I got a bad feeling about this)
https://www.youtube.com/watch?v=oTVkxx61dwU ^

Posted on 05/05/2013 9:39:09 AM PDT by Maceman

I just saw this ad for a new PBS show called Constitution USA, which premiers this week.

According to the ad, the show seeks to answer the question: "Does the Constitution have what it takes to keep up with the lives, limits and freedoms of modern America?"

Judging purely by the ad, I'd say that our Constitution is in for a real shellacking at the hands of PBS.

Here's an excerpt of a review of the show by Variety:

Sagal (host of NPR’s “Wait Wait… Don’t Tell Me!”) frames the discussion with a gimmick, riding across the U.S. on red, white and blue Harley-Davidson to “find out what the Constitution means in the 21st century, how it unites us as a nation and how it has nearly torn us apart.”

The interviews range from former Supreme Court Justice Sandra Day O’Connor to ordinary citizens – activists on different sides of the debate, including (in the premiere) gun ownership and 2nd-Amendment rights.

Still, it’s hardly a newsflash – unless you’re dealing with a group of middle-schoolers – to say the Constitution is a document open to various forms of interpretation, which has been at the heart of disputes since it was ratified 225 years ago (said anniversary providing the ostensible excuse for this exercise).

I'm thinking there aren't enough barf bags in the world to prepare us for what looks like a major assault in the left's continuing War on the Constitution.


TOPICS: Constitution/Conservatism; Your Opinion/Questions
KEYWORDS: 2ndamendment; banglist; constitution; constitutionrelic; constitutionusa; defundnpr; defundpbs; guncontrol; partisanmediashill; partisanmediashills; pbs; secondamendment; sourcetitlenoturl; vanity
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Your tax dollars at work.
1 posted on 05/05/2013 9:39:09 AM PDT by Maceman
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To: Maceman
Guaranteed that PBS will screw up the meaning of the Constitution.
2 posted on 05/05/2013 9:41:53 AM PDT by SandRat (Duty - Honor - Country! What else needs said?)
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To: Maceman

They will shred the document, both literally and figuratively..


3 posted on 05/05/2013 9:42:26 AM PDT by cardinal4 (Constitution? What Constitution?)
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To: cardinal4

This probably the meme for May, last month it was guns, the month before it was gay marriage. Now it is the viability of our founding document..


4 posted on 05/05/2013 9:43:44 AM PDT by cardinal4 (Constitution? What Constitution?)
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To: Maceman

https://online.hillsdale.edu/register

•Constitution 201—The Progressive Rejection of the Founding and the Rise of Bureaucratic Despotism
View Lecture Topics and Course Description


5 posted on 05/05/2013 9:44:16 AM PDT by EBH (Warning this person is a Catholic, Tea Party Patriot, and owns a copy of Atlas Shurgged)
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To: Maceman; SandRat

I’m so sure this will be a paragon of accuracy and fair reportage.

Especially the section on Constitutional requirements to hold office.

The coverage of the Bill of Rights should be above reproach as well.


6 posted on 05/05/2013 9:44:35 AM PDT by null and void (CA State Moto: "We have no idea right now where they were going or where they were coming from")
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To: Maceman

I’ve heard lots of good things about “Courage New Hampshire”. Huffington post calls it lying tea party TV. It will run on INSP on Memorial day.

http://www.multichannel.com/content/insp-sets-courage-new-hampshire-miniseries-memorial-day/142302


7 posted on 05/05/2013 9:45:18 AM PDT by cripplecreek (REMEMBER THE RIVER RAISIN!)
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To: Maceman

“Coming?”


8 posted on 05/05/2013 9:45:22 AM PDT by JCBreckenridge (Texas is a state of mind - Steinbeck)
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To: Maceman

Watch for the living, breathing Penumbra to be on display


9 posted on 05/05/2013 9:46:41 AM PDT by NonValueAdded (3 guns when you only have one arm? "I just don't want to get killed for lack of shooting back")
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To: Maceman

There’s a guy at work, retired Army, says the Constitution doesn’t mean squat and the government can do whatever it damned well pleases.

The mention of the Constitution riles him up. Especially when we talk about limits on federal power.

He was very happy when Obama care passed.


10 posted on 05/05/2013 9:48:33 AM PDT by Dalberg-Acton
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To: Maceman

The Constitution ?
What would they know ?


11 posted on 05/05/2013 9:50:08 AM PDT by Eric in the Ozarks (NRA Life Member)
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To: null and void

You forgot to ad the </Sarc


12 posted on 05/05/2013 9:51:28 AM PDT by SandRat (Duty - Honor - Country! What else needs said?)
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To: Maceman

No one will watch this, it’ll be scrapped by next fall, when PBS will need the time to run good programming so they can hold telethons for funds every 5 minutes.


13 posted on 05/05/2013 9:52:13 AM PDT by swamprebel (a Constitution once changed from Freedom, can never be restored.)
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To: Maceman

This is going to be another push for Wilsonian ‘living constitution’ along with Obama’s “negative rights” whining. But it may be an opportunity to engage some people in a discussion of the actual Constitution.


14 posted on 05/05/2013 9:54:39 AM PDT by Paine in the Neck (Socialism consumes everything + 969)
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To: swamprebel
it’ll be scrapped by next fall,

Apparently, it's only a four-episode miniseries.

15 posted on 05/05/2013 9:55:07 AM PDT by Maceman
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To: Maceman
Apparently, it's only a four-episode miniseries.

They only need to (1) eliminate freedom of speech and religion, (2) eliminate freedom from self incrimination, (3) eliminate the possibility of armed insurrection, (4) and enable moving troops into your spare bedroom.

Four episodes will suffice for now...

16 posted on 05/05/2013 10:11:13 AM PDT by null and void (CA State Moto: "We have no idea right now where they were going or where they were coming from")
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To: Maceman
Does the Constitution have what it takes to keep up with the lives, limits and freedoms of modern America?

the question should be reversed and the answer is clearly no. Since it was signed and became the law of the land, the Constitution in its original intent and purpose has proved its worth to the people as the foundation of this country's success and strength. It is not corrupt except for those laws enacted under its authority that do not meet Constitutional muster and were passed by corrupted legislators and signed in to law by corrupted presidents. Those illegitimate laws and the unwillingness by the US (corrupted) government to enforce laws equally are the very things our Founders fought to end, thus they gave us the Constitution.

17 posted on 05/05/2013 10:16:53 AM PDT by drypowder
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To: Maceman
This is only one tiny part of a broad-based political/media campaign to undermine our Constitution. The Progressive Left is really annoyed its attempts to evade or ignore our founding document have been called into question. Obama's attempt to pack the courts with liberals hasn't yet given him carte blanche on assigning himself extra-Constitutional powers. One option remains to our would-be dictator: get rid of the thing.

College students these days are taught that they are "citizens of the world" and that our Constitution is merely a "living document" that can be molded and shaped to fit the political goals of the moment. In a sense that's true, if it's properly amended, but the Left is much to impatient to allow due process and democratic procedures.

18 posted on 05/05/2013 10:23:24 AM PDT by Bernard Marx
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To: AdmSmith; AnonymousConservative; Berosus; bigheadfred; Bockscar; ColdOne; Convert from ECUSA; ...

Forcing me to pay for NPR and PBS violates my First Amendment rights.

Thanks Maceman.


19 posted on 05/05/2013 10:30:59 AM PDT by SunkenCiv (Romney would have been worse, if you're a dumb ass.)
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To: Maceman

PBS + series on the Constitution = “it’s a living document”


20 posted on 05/05/2013 10:35:56 AM PDT by Gay State Conservative (Leno Was Right,They *Are* Undocumented Democrats!)
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To: Dalberg-Acton
There’s a guy at work, retired Army, says the Constitution doesn’t mean squat and the government can do whatever it damned well pleases.

That's a fairly accurate assessment of the last 100 years of our Federal government.

21 posted on 05/05/2013 10:43:58 AM PDT by Gunslingr3
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To: Bernard Marx
Once the States were booted from the Senate a hundred years ago, there was no structural means to limit the national government to enumerated powers.

James Madison correctly called Bills of Rights “parchment barriers” that were only as effective as the means to enforce them.

Take the 1st Amendment. Freedom of the press is near sacrosanct. It is, not because the 1st Amendment says so; it is enforced because politicians know they will be abused in the press if they ever try to seriously impinge it.

As for the 10th, the 17th Amendment removed the political institution, the Senate, designed to protect the 10th. As a result, the 17th effectively repealed the 10th and we are left with an overwhelming consolidated government that will eventually absorb our God given rights.

To begin a return to the Constitution of our Framers, the 17th must go.

22 posted on 05/05/2013 10:49:03 AM PDT by Jacquerie (How few were left who had seen the republic! - Tacitus, The Annals)
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To: Jacquerie

Thanks for that — good points. I’ll factor that into my future thinking.


23 posted on 05/05/2013 11:06:17 AM PDT by Bernard Marx
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To: Maceman; All
According to the ad, the show seeks to answer the question: "Does the Constitution have what it takes to keep up with the lives, limits and freedoms of modern America?"

One of the ways that minority factions try to subvert the will of the Article V majority as reflected by the Constitution is to try to depict the Constituton as obsolete and therefore not worthy of attention.

But also consider that the corrupt, pro-big federal government media tries to avoid mention of Article V, the Constitution's procedure for amending the Constitution, for the following reasons. Not only would voters find out from Article V that only the states, not the federal government, can ratify proposed amendments to the Constitution, but voters would also make the connection that, because the states uniquely control what the Constituiton says, the states have absolute control over the federal government, not vice-versa as many Constitution-ignorant "patriots" seem to think. After all, if such knowledge became widespread then it would throw a monkey wrench into the Progressive Movement agenda to unconstitutonally centralize government power in DC.

24 posted on 05/05/2013 11:15:20 AM PDT by Amendment10
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To: Amendment10; Maceman
Let me tell you what you need to do.

Go to the PBS website, scroll down a ways and you'll see the video Power Struggle: Tug of War. Watch it, a 4 minute preview of one episode, the one on 2nd amendment.

Beneath that there are numerous shorts and previews of many episodes

25 posted on 05/05/2013 11:45:44 AM PDT by Ben Ficklin
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To: Ben Ficklin

Go to the PBS website...

Done, and Thanks


26 posted on 05/05/2013 12:09:45 PM PDT by Paisan
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To: Ben Ficklin

Why don’t you just give me your sense of what I’ll find if I take your advice?

If it will be a pleasant surprise, I will look at it. If it fulfills my worst expectations (as the ad suggests it will), I don’t really need any more aggravation today.


27 posted on 05/05/2013 12:10:32 PM PDT by Maceman
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To: Maceman

We know what the PBS slant will be, just as we know the sun rises in the East.

Someone should set up a “watch dog” site in advance to counter the show’s distortions.


28 posted on 05/05/2013 12:17:55 PM PDT by Yardstick
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To: Yardstick

There’s another one to examine, too: “Muhammad” http://www.pbs.org/muhammad/

4 hours on PBS


29 posted on 05/05/2013 12:26:46 PM PDT by combat_boots (The Lion of Judah cometh. Hallelujah. Gloria Patri, Filio et Spiritui Sancto!)
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To: Maceman
Let me guess... let me guess...

Constitutional thinkers, judges and scholars prior to 1910 need not apply.

Marxists, Communists, Socialists, Anarchists, Progressives, and Rubber Constitution adherents welcome.

Any mention whatsoever of The Bill of Rights is cause for ejection.

30 posted on 05/05/2013 12:40:42 PM PDT by publius911 (Look for the Union label, then buy something else.)
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To: combat_boots

“A film by...Unity Productions Foundation”

Tells you all you need to know right there. Just another effort to get the nose under the tent.


31 posted on 05/05/2013 12:48:24 PM PDT by Yardstick
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To: Maceman
Wish I could help you but I've watched only two of them: the one you linked and the one I mentioned. Rather than speculate about the show you can preview to get an idea before you watch the entire show.

These particular issues of dispute generally boil down the general welfare clause and the commerce clause.

So the video on the man from Montana and/or the new Kansas legislation are about does the commerce clause apply to intrastate commerce.

32 posted on 05/05/2013 12:53:20 PM PDT by Ben Ficklin
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To: Maceman; cardinal4; EBH; null and void; Paine in the Neck; drypowder; Bernard Marx; gunslinger; ...
Prior to viewing this PBS "Constitution" program, perhaps an in-hand printout of the following 1984 essay by Dr. Walter Berns might provide a good reference point for any discussion of the "living constitution" idea which so-called "progressives" (liberals) promote in their attempt to "change" and erode the Constitution's limits on power.

   







 

 

 

 
 

 

Do We Have
A Living
Constitution?

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:

"... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act."

The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and in­dependent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.

The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.

Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:

  • "Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.

  • "The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)

Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."

In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.

  • What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.

The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.

The Enduring American Constitution

Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.

In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the con­stitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional govern­ment. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.

Treating The Constitution As
A Thing Without Form or Substance:
New Definitions Of 'Living'

In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

  • "Creating" Constitutional Rights and Dworkin's Influence

The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of East Cleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his book Taking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."

As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

  • The 'Living Constitution' School's Distortion of Marshall

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

  • "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.

Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."

Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."

We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.

Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; W. D. Stedman & La Vaughn G. Lewis, Eds.) ISBN 0-937047-01-5      

(Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)

33 posted on 05/05/2013 1:37:53 PM PDT by loveliberty2
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To: Maceman

It’s not the constitution that has torn the country apart,it’s the A- Aholes who have twisted it from its original intention of protecting the people From the Government,to a document to enslave the American people to a Marxist utopia


34 posted on 05/05/2013 2:15:22 PM PDT by ballplayer
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To: loveliberty2; All
Regarding the so-called "living Constitution," I understand that idea of the living Constitution got created as follows. It got created as a consequence of justices who possibly got snowed by corrupt Congress to think that Congress could use its constitutional power to negotiate treaties as a back door to force US citizens to comply with foreign laws based on powers which the states have never delegated to Congress via the Constitution. The particular case where this happend is was Missouri V. Holland.
Missouri v. Holland (Note last sentence of first paragraph.)

Note that in deciding Missouri v. Holland, justices ignored (overlooked?) the following excerpts from Thomas Jefferson's wrtings. Jefferson had based his opinion about this issue on his experience as the VP of the United States, and therefore president of the Senate, and was thus expertly familiar with potential abuses of the Senate's constitutional authority to negotiate treaties.

"In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise." --Thomas Jefferson: The Anas, 1793.

"Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way." --Thomas Jefferson: Parliamentary Manual, 1812.

Also note that the Supreme Court subsequently officially clarified what Jefferson had indicated about limits on the Senate's power to negotiate treaties.

"2. Insofar as Art. 2(11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is "necessary and proper" to carry out obligations of the United States under international agreements made with those countries, since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution (emphasis added)." --Reid v. Covert, 1956.

So the so-called "living Constitution" should arguably be synonymous with judicial activism.

35 posted on 05/05/2013 2:20:28 PM PDT by Amendment10
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To: Gunslingr3

I hope he was stating this point like it was a bad thing.


36 posted on 05/05/2013 4:02:21 PM PDT by princeofdarkness (The GOP is the present version of 1940 France and it will only get worse.)
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To: Amendment10
Thanks for the quotations.

Inasmuch as the margins intruded on some of the words of Dr. Berns' essay quoted above, it is reposted here, minus the margin problem:

Do We Have
A Living
Constitution?

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:

"... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act."

The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and in­dependent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.

The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.

Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:

Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."

In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.

The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.

The Enduring American Constitution

Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.

In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the con­stitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional govern­ment. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.

Treating The Constitution As
A Thing Without Form or Substance:
New Definitions Of 'Living'

In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of East Cleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his book Taking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."

As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.

Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."

Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."

We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.

Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; W. D. Stedman & La Vaughn G. Lewis, Eds.) ISBN 0-937047-01-5       (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)


37 posted on 05/05/2013 5:51:19 PM PDT by loveliberty2
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To: cardinal4
They will shred the document, both literally and figuratively..

Then isn't it fair that we should start shredding them?

38 posted on 05/06/2013 6:07:08 AM PDT by JimRed (Excise the cancer before it kills us; feed &water the Tree of Liberty! TERM LIMITS, NOW & FOREVER!)
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To: Maceman

saw the ad. start tonight at 8pm. think I’ll watch hockey instead.

“and he puts the puck in the penumbra!!”


39 posted on 05/07/2013 1:55:51 PM PDT by TurboZamboni (Marx smelled bad & lived with his parents most his life.)
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To: Dalberg-Acton

was he in the Chinese Army?


40 posted on 05/07/2013 1:56:51 PM PDT by TurboZamboni (Marx smelled bad & lived with his parents most his life.)
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To: TurboZamboni

Nope. He says it was ours.


41 posted on 05/07/2013 2:54:54 PM PDT by Dalberg-Acton
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To: Maceman; SandRat; cardinal4; EBH; null and void; American Constitutionalist; NonValueAdded; ...
I actually saw the first installment of the PBS series last night, and shockingly, it was much better that I had anticipated.

The gist of it is this: The narrator takes a motorcycle trip to various parts of the country where constitutional cases and controversies have arisen or might in the near future, and interviews participants or possible participants in these controversies. There was also a pretty accurate historical segment done at Independence Hall in Philadelphia, where the document was created. Surprisingly to me, the narrator didn't seem to show much of a bias for or against his interviewees, who included what you may describe as a couple of right libertarians, one who was a gun and ammo manufacturer in Montana, and they had some legit film clips of Rand Paul speaking in the Senate. They also did a pretty good job in explaining some parts of the Constitution that are frequently contested in cases and the common types of arguments used by the two sides, and kind of even questioned the SCOTUS' reasoning in Wickard v. Filburn with a slick animation of the Court's dubious thought processes.

At the very least, they discussed the Constitution with some respect, and with no hints that it was dead, which is not what one would have expected from a leftist media outlet or a 'Rat propagandist.

Still three episodes in the series remaining, so the hope is that it won't deteriorate into something much worse.

42 posted on 05/08/2013 2:54:27 PM PDT by justiceseeker93
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To: justiceseeker93

Thanks so much for the review. I very much appreciate your taking one for the team by daring to watch it. Glad it wasn’t the train wreck that I thought it would be.

I’ll look forward to your future updates.

Thanks again, really.


43 posted on 05/08/2013 2:57:45 PM PDT by Maceman (Just say "NO" to tyranny.)
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To: justiceseeker93
Thanks for the heads up.

Good shows sometimes get past PBS's apparatchiks, such as Niall Ferguson's excellent "The Ascent of Money".

44 posted on 05/08/2013 3:09:02 PM PDT by SecondAmendment (Restoring our Republic at 9.8357x10^8 FPS)
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To: justiceseeker93

“Hope springs eternal” as they stay. Thanks for the report. I notice every once in a while Frontline touches on a subject and gives decent enough coverage that it makes me ask “is this really PBS???”


45 posted on 05/08/2013 3:16:19 PM PDT by NonValueAdded (3 guns when you only have one arm? "I just don't want to get killed for lack of shooting back")
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To: justiceseeker93

...film clips of Rand Paul...

New appreciation for Rand Paul, despite his being a lone voice crying in the wilderness, and the smarmy, morally superior “regulators” he was chastising.


46 posted on 05/08/2013 3:55:47 PM PDT by Paisan
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To: justiceseeker93

Interesting, when I saw that on PBS I figured it wasn’t worth my time.


47 posted on 05/08/2013 5:20:44 PM PDT by Impy (All in favor of Harry Reid meeting Mr. Mayhem?)
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To: justiceseeker93

As far as the liberals go the US Constitution is a dead stale document that is antiquated unless they can make it do what they want it to do. i.e. make up the rules to suit them selves and make up the rules as they go.


48 posted on 05/08/2013 7:11:39 PM PDT by American Constitutionalist
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To: Maceman

” Your tax dollars at work. “ i.e. propaganda dollars provided by your good old federal liberal controlled government.


49 posted on 05/08/2013 7:12:54 PM PDT by American Constitutionalist
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To: null and void

The thing is ? they will articulate it in a way to impress upon inpressonable minds to say what they ( i.e. ungodly liberals ) want it to say and make it sound good and sound like the truth.


50 posted on 05/08/2013 7:15:22 PM PDT by American Constitutionalist
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