Myth or Misconception #8: The Constitution is a "living" document.
Imprimis, an excellent monthly publication of Hillsdale College (www.hillsdale.edu) , in the August 2005 issue, publishes an adapted speech of Stephen Markman, a Justice of the Michigan Supreme Court, in which he explains 8 Myths or Misconceptions, the last of which is quoted below:
"Myth or Misconception 8: The Constitution is a "living" document.
The debate between interpretivists and non-interpretivists over how to give meaning to the Constitution is often framed in the following terms: Is the Constitutiohn a "living" document, in which judges "update" its provisions according to the "needs" of the times? Or is the Constitution an enduring document, in which its original meanings and principles are permanently maintained, subject only to changes adopted in acordance with its amending clause? I believe that it is better described in the latter sense. It is beyond dispute, of course, that the principles of the constitution must be applied to new circumstances over time - the Fourth Amendment on searches and siezures to electronic wiretaps, the First Amendment on freedon of speech to radio and television and the Internet, the interstate commerce clause to automibiles and planes, etc. However, that is distinct from allowing the words and principles themselves to be altered based upon the preferences of individual judges.
Our Constitution would be an historical artifact - a genuinely dead letter - if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices on "updating" it or replacing what some judges view as the "dead hand of the past" with contemporary moral theory. This is precisely what the Founders sought to avoid when they instituted a "government of laws, not of men."" (Bold emphasis is mine)
This is the clearest explanation I have read that clearly explains how "new circumstances" are being mis-interpreted to justify "living" Constitution interpretation, letting mens whims back into the equation.
The best recent example: Some members of our Supreme Court believe that precedences in foreign countries should apply to our laws. Talk about living! That is living dangerously!!
"Myth or Misconception 8: The Constitution is a "living" document.
The debate between interpretivists and non-interpretivists over how to give meaning to the Constitution is often framed in the following terms: Is the Constitutiohn a "living" document, in which judges "update" its provisions according to the "needs" of the times? Or is the Constitution an enduring document, in which its original meanings and principles are permanently maintained, subject only to changes adopted in acordance with its amending clause? I believe that it is better described in the latter sense. It is beyond dispute, of course, that the principles of the constitution must be applied to new circumstances over time - the Fourth Amendment on searches and siezures to electronic wiretaps, the First Amendment on freedon of speech to radio and television and the Internet, the interstate commerce clause to automibiles and planes, etc. However, that is distinct from allowing the words and principles themselves to be altered based upon the preferences of individual judges.
Our Constitution would be an historical artifact - a genuinely dead letter - if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices on "updating" it or replacing what some judges view as the "dead hand of the past" with contemporary moral theory. This is precisely what the Founders sought to avoid when they instituted a "government of laws, not of men."" (Bold emphasis is mine)
This is the clearest explanation I have read that clearly explains how "new circumstances" are being mis-interpreted to justify "living" Constitution interpretation, letting mens whims back into the equation.
The best recent example: Some members of our Supreme Court believe that precedences in foreign countries should apply to our laws. Talk about living! That is living dangerously!!
posted by Jim | 2:21 PM
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