The Constitution, a living document or a textualist paradise

May 2012
70,212
14,179
By the wall
Do we take it word for word or do we apply what it says to our times with the help of Congress and the Court.

What has made it stand the test of time?

What do you think?
 

Babba

Former Staff
Jul 2007
77,248
68,607
So. Md.
We were given the ability to amend it because the writers knew shit would come up that they had no way of knowing about or didn't think to include in the original. Being an originalist is silly.
 
Dec 2007
34,673
6,991
Middle of nowhere Arkansas
We have the ability to amend it but instead of that the courts have been on a find "rights" never envisioned by the founders. The constitution has been abused in my humble opinion.
 
Sep 2009
5,166
530
The problem with the living document idea is it begs the question over when times have changed.

On the other hand, textualism only works if people have an appreciation for language arts.

I'm not sure language arts are something people care about today. People are just obsessed with getting things done.
 

Ian Jeffrey

Council Hall
Mar 2013
77,315
46,720
Vulcan, down the street from Darth Vader
Do we take it word for word or do we apply what it says to our times with the help of Congress and the Court.
Yes.

To answer the question of the thread title, the answer is that it’s both. The problem is that no single interpretive method is appropriate across the board, which is why we have judges to handle this sort of thing. Furthermore, sometimes the text is clear, and sometimes it isn’t. Some things are very specific, and others are deliberately vague. The need for judges was, in fact, built into the Constitution precisely to resolve questions of law (and fact, where a jury is not involved). (See U.S. Const. art. III, § 1-2.)

The Constitution’s only been amended 18 times (considering the Bill of Rights as a single amendatory act), which indicates it’s stood the test of time because of its precision and its flexibility. Without both, it would have fallen apart.

We have the ability to amend it but instead of that the courts have been on a find "rights" never envisioned by the founders. The constitution has been abused in my humble opinion.
This is not an abuse. The 9th Amendment clearly provides that, “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It means that the people have rights not in the Constitution, including those not envisioned by the founders. Here is an example of both precision and flexibility by design. The founders knew they couldn’t identify all possible rights, and expressly did not want anyone to rely solely upon textual interpretation so as to deny other rights. Madison himself held back the publication of his notes of the Convention so that people would rely upon the document, rather than the contents of the heads of the men who wrote it. Government is limited by the Constitution in its power; the people are not limited by the Constitution in their rights, and in fact no such limitation is written in.
 
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Sep 2009
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That's not true.

The 9th amendment was included to prevent a Bill of Rights from working in reverse. The founders worried that a Bill of Rights could be construed as the limits by which people are liberated. The 9th amendment explicitly notes that this isn't the case. The Bill of Rights only serves as a check on the government. It is not required that additional rights be legislated for the people.
 

Ian Jeffrey

Council Hall
Mar 2013
77,315
46,720
Vulcan, down the street from Darth Vader
I wasn't saying it was a requirement that additional rights be legislated. Rather, there were rights protected by the Constitution that need not be legislated, that were not enumerated. The point of the 9th Amendment is that you cannot claim a right does not exist merely by its absence from the Constitution; however, the courts can still recognize additional protected rights.