Monthly Archives: June 2007

Point: The Constitution Is A Living Document

In the United States, a document–the Constitution of the United States, the Supreme Law of the Land–binds us, the people, when we are granted citizenship. By becoming citizens of this great nation, we assure ourselves the protections outlined by this document. Unfortunately, many citizens forget these inalienable rights.

However, there are some that have not. There are still many scholars of the Constitution and between these informed citizens there is a debate that has raged since the days after the Civil War. This debate–the debate over the elasticity of the Constitution–is a healthy discourse that defines the heart of the American philosophy. On one side of the debate, there are scholars that declare that the Constitution is rigid, that only a strict interpretation of the Constitution is acceptable. Supreme Court justices such as the late Chief Justice Rehnquist and constitutional scholar Ron Paul support this argument. On the other side, though, many scholars also say that the Constitution is a “living document” that has a certain amount of elasticity to it. Again, several Supreme Court Justices and constitutional scholars agree with this point of view. So, who is right?

While the “strict interpretation” argument has several solid points, I believe that the evidence falls heavily in the favor of the “living document” argument. The legal system in the colonies, the words of the framers, the fears of the Constitution’s opponents, the Supreme Court’s solidification of its own power and even the framework of the Constitution all point to a “living document.”

However, before I delve into details about each one of those evidence points, I must point out that “living document” is unjustly correlated with “judicial activism.” Judicial activism is a situation where a judge tries to impose his own political views into a ruling–usually by completely disregarding any acceptable ruling logic. Thus, any judge, whether she has a “strict constructionist” or “living document” view, can be a “judicial activist.”

The first point to be made to support the living constitution rhetoric is that the colonies all had legal systems that were similar to the Great Britain legal system. In Great Britain, citizens were protected under the Magna Carta. This British “bill of rights” was a document that is not unlike our own Bill of Rights, though it was less extensive and less restrictive on the British government. However, there was a practice in Great Britain that was called “Common Law.” This law was flexible law that was aggregated by using all of the court cases to determine what is lawful and what is not. The Founders practiced this sort of flexible law in the colonies and, afterward, in the states. It is reasonable to say that they expected the Federal government’s legal system to act in much of the same way.

The Framers are also on record describing the powers of the judicial branch. Alexander Hamilton wrote in Federalist No.78 that “exercise of judicial discretion” is the “province of the courts” of which he gave a specific example of “two contradictory laws” where the courts have the power “to liquidate and fix their meaning and operation.” This “province of the courts” to “exercise judicial discretion” sounds familiar to the Common Law practices of the colonies and Britain, as discussed before.

The opponents of the Constitution wrote a series of letters that are now in a collection called the “Antifederalist Papers.” These letters were written to oppose the Constitution and are useful in attempting to discover what the Founders feared about the Constitution and government in general. It can also be used to determine the intent of the Constitution, as the arguments written in these letters elaborate on each part of the Constitution more than the Constitution does itself! In Brutus 5, one of the opponents of the Constitution declared:

    In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare.” — And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper.

He argued that the Congress would have power to do what it wished with the elastic clause (which, sadly, has not been restricted and Brutus has been proven correct). This is evidence that the founders intended for the document to have some elasticity.

In 1801, John Marshall was appointed Chief Justice of the Supreme Court. Before his appointment and during his first two years as the nation’s top Justice, the Court had no real power. The Court’s decisions reached no further than the individual cases which were brought before it. However, Chief Justice Marshall changed that in Marbury v. Madison, 1803. In this case, Marshall declared that the judiciary branch has the power of judicial review–the same concept that was exercised in state judiciaries as well as in the judiciaries of the colonies. This power was not directly outlined by the Constitution but it was declared shortly after the Constitution was ratified and it was during the times of the founders. To my knowledge, not one of the Founders criticized the decision (though, Jefferson was angry. But, it was for different reasons other than Constitutionality).

For my final point of evidence, the framework of the Constitution itself creates an aura of openness and flexibility. The words of the Constitution are very vague. In some instances, certain powers are left open to interpretation–the judicial branch had nearly no direction from the Constitution! Also, the Bill of Rights weren’t properly ratified and added to the Constitution until 1791! The vagueness of the Constitution can be seen when compared to other constitutions. For example, the length of the Constitution, in words, is 4,543. By comparison, the South African Constitution has over 50,000 words! By all counts, the South African constitution is specific while the United States Constitution is vague. The vagueness of the United States Constitution leaves for flexibility in the government.

The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.

Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.
As one last point, whether the Constitution is a living document or not is a great argument to research and learn about. Many scholars would disagree with me on my stance that the Constitution is a living document. In fact, most of my conservative friends would completely disagree with me. However you feel, though, I think that promoting such a discussion is beneficial for all. No matter whom is right, we all win; we win back the defining principle that makes Americans uniquely American: public discourse. If we don’t fight for our Constitution, living or dead, it will slowly disappear into oblivion. None of us want that.

From Guest Blogger Derek Hammer

Dick Cheney Rejoins The Executive Branch

Compelled perhaps by the rather creative proposal by Congressman Rahm Emanuel to cut off funding for the Office of the Vice-President based on assertions that the Veep is not part of the Executive Branch of Government, Vice-President Cheney has now apparently decided to rejoin the Executive Branch of the Federal Government:

Dick Cheney’s office is abandoning a justification for keeping the vice president’s secret papers out of the hands of the National Archives, while asserting a new argument for withholding them.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

The decision follows a threat by Rep. Rahm Emanuel (Ill.), the No. 3 House Democrat, to try to cut off the office’s $4.8 million in executive-branch funding, and a letter from Sen. John F. Kerry (D-Mass.) asking for the reasoning behind the argument.

Welcome back to the United States, Mr. Vice-President. But what’s this about a new argument for withholding secret documents ?

David S. Addington, Cheney’s chief of staff and counsel, wrote in a three-paragraph response to Kerry on Tuesday that the executive order on classified national security information does not give the archivists authority over the president or vice president.

Addington said that therefore it “is not necessary in these circumstances to address the subject of any alternative reasoning.”

In other words, we’re still not going to comply with the law and we’re not going to tell you why.

Audacity Defined: Congress Gives Itself A Pay Raise

Notwithstanding record low approval ratings, it appears that the members of the House of Representatives think they’re entitled to a pay raise:

WASHINGTON (Map, News) – Despite record-low approval ratings, House lawmakers Wednesday voted to accept an approximately $4,400 pay raise that will increase their salaries to almost $170,000.

The cost-of-living raise gets lawmakers back on track for automatic pay raises after a fight between Democrats and Republicans last year and again in January killed the pay hike due this year. That was the first interruption of the annual congressional pay hike in seven years.

The blowup came after Democrats last year fulfilled a campaign promise to deny themselves a pay hike until Congress raised the minimum wage. Delays in the minimum wage bill cost every lawmaker about $3,100 this year.

On a 244-181 vote Wednesday, Democrats and Republicans alike killed a bid by Reps. Jim Matheson, D-Utah, and Lee Terry, R-Neb., to get a direct vote to block the COLA, which is automatically awarded unless lawmakers vote to block it. The Senate has not indicated when it will deal with a similar measure.

Unlike those lucky folks on Capitol Hill and the rest of the people who work for, or receive benefits from, the Federal Government, most of us aren’t entitled to a pay raise just because the “cost of living” has increased.

But, of course, we’re the little people. And they deserve it.

Right ?

PETA Swerves Into the Truth

Even organizations as wrongheaded and extreme as PETA can swerve into the truth on occasion. PETA’s president and founder Ingrid E. Newkirk wrote a letter to Michael Moore (the Fat Ass from Flint) in response to Moore’s upcoming crockumentary SiCKO; a film which advocates socialized healthcare and criticizes America’s current healthcare system. So what is PETA’s beef (pardon the pun) with the Fat Ass’s movie? The beef is that, due to his weight, he apparently eats a lot of beef.

Dear Mike,

Congratulations from PETA on your reviews for SiCKO. Although we think that your film could actually help reform America’s sorely inadequate health care system, there’s an elephant in the room, and it is you. With all due respect, no one can help but notice that a weighty health issue is affecting you personally. We’d like to help you fix that. Going vegetarian is an easy and life-saving step that people of all economic backgrounds can take in order to become less reliant on the government’s shoddy healthcare system, and it’s something that you and all Americans can benefit from personally…


Yes, America’s healthcare system needs to be fixed, but personal responsibility is a big part of why people look and feel as ill as they do.

Obliviously, PETA has an agenda here trying to convince the Fat Ass to become a vegetarian; I wouldn’t begrudge the Fat Ass his steak and eggs (as I would not give up my right to eat tasty animals) but rather encourage moderation of diet (though I am not the best person to preach such a message either. I could stand to lose a few pounds too). What Newkirk writes toward the end of her letter is very interesting, however. About the last thing I would expect to hear from a leftist is anything having to do with “personal responsibility.”

I do not believe that Newkirk’s point was that the U.S. should adopt more of a free market approach to healthcare opposed to the Fat Ass’s socialist/Hillary Clinton model but may have inadvertently helped make such an argument. Under socialist and communist systems, there are few rewards for individuals making good choices. Those who make very poor choices strain the system yet they receive the same benefits as those who have made better choices. Shouldn’t we be moving away from this sort of system and instead see what the free market has to offer?

I cannot for the life of me understand why health insurance operates so differently from virtually every other kind of insurance. The auto insurance industry charges lower premiums for drivers who have better driving records than those with wrecks and tickets. Home owner policies are less for people who choose to live closer to a fire station. Life insurance companies give better rates to those who are at or close to their ideal weight, don’t smoke, don’t drink excessively, or otherwise live a life of minimal risk. It seems to me that if the health insurance industry followed the same model, healthcare would be much less expensive and the healthcare providers and health insurers would make more profit than they do now.

Even more than the free market reasons for opposing socialized medicine, there is also a moral argument to consider. We simply cannot demand freedom if we are not willing to accept responsibility. We cannot oppose the war on (some) drugs on moral grounds if we are not willing to tell those who wish to harm their bodies that they should also be responsible for their own trip to the hospital (and all other expenses they incur from making a bad choice). Those of us who choose not to smoke, drink excessively, or overeat should not be expected to pay more for those who do. Living in a free society means taking responsibility for your own choices.

Rahm Emanuel — Cheney Can’t Get Funding From Executive Branch

Dick Cheney dropped an odd proclamation last week. It appears that he doesn’t believe he’s part of the Executive Branch, and thus is not subject to their rules regarding disclosure. He’s playing with fire, because if he’s outside the Executive Branch, it’s unclear whose rules he falls under. Cheney is hoping that means he’s not under anyone’s rules, but that’s a tenuous assertion to make.

Now, Rahm Emanuel is going to try to call his bluff. Since Cheney doesn’t believe he’s part of the Executive, Emanuel is going to try to make sure his office— and home— aren’t funded as part of the Executive:

Responding to claims by Vice President Dick Cheney that his office is exempt from disclosing information about what it has classified as secret, Rep. Rahm Emanuel (D-Ill.) said Tuesday he will try to cut off the $4.8 million needed annually to run Cheney’s office and home.

Last week, Cheney claimed he is not bound to disclose some national security requirements because, as president of the Senate, he is not part of the executive branch.

Emanuel’s proposal would be attached as an amendment to a spending bill that includes funding of the executive branch and which is expected to be considered by the House as early as Wednesday night. The amendment proposes that no executive funds be used for the vice president’s office, including any money for Cheney’s vice presidential residence.

“He’s not part of the executive branch. We’re not going to fund something that doesn’t exist,” said Emanuel, who is also the House Democratic Caucus chairman. “I’m following through on the vice president’s logic, no matter how ludicrous it might be.”

Seems like a pretty clear interpretation of Cheney’s illogic to me. Of course, Cheney’s office responded with a standard retort:

Cheney spokeswoman Megan McGinn retorted, “I think it is sad that Congressman Emanuel would rather focus on partisan politics than the serious issues facing our country.”

What, because the Constitution, separation of powers, and the ability of “we the people” to engage in oversight aren’t serious issues? Yes, Emanuel’s playing politics. But Cheney’s just trying to make himself above the law. I consider the former a justifiable tactic against the latter.

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