[Jason Vines]

In a conversation on another board, Sam Cogley posted this. I'm replying here because the other forum has a restrictive character limit, and this forum is more conducive to political discussions, anyway.

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Grossly mischaracterized, in a very far-right manner.

I doubt Nazis, to whom you must be referring with "very far-right," would object to a "living Constitution."

In any case, the evidence I've seen points to the interpretation I proferred of the "living Constitution" thesis. One of the chief promulgators of the "living Constitution," Woodrow Wilson, writing in his 1908 book Constitutional Government, championed the approach not as a means by which to adjust the philosophy of the Founding to the modern era, but as a way to repudiate the Founders, what with their anachronistic devotion to individual rights and checks-and-balances, and reframe the Constitution according to "Darwinian principles" -- which, for Wilson, partly meant unshackling the President so he could be "at liberty, both in law and conscience, to be as big a man as he can" (Cult of the Presidency, pp. 54-55).

Oliver Wendell Holmes, Jr., also didn't seem to think interpretation according to the "living Constitution" paradigm meant just "wiggling" within parameters the Founders had established, but reinterpreting the Constitution according to contemporary mores (see Missouri vs. Holland).

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The actual theory that you're attempting to describe is a simple one - that the Framers were smart enough to leave the Constitution fairly vague and flexible. This gives the government of the people, by the people and for the people some "wiggle room" to adjust to changing conditions without wholesale re-writes.

But a "fairly vague and flexible" constitution is contrary to what, from my readings, the Founding generation thought a constitution was.

An illuminating book, The Ideological Origins of the American Revolution by Bernard Bailyn, contains a section called "Constitution and Rights" in which Bailyn presents contemporary writings showcasing the evolution of constitutional thought in America during the mid- to late-18th century. A constitution was conceived of as a fixed and inviolable covenant, between the people and/or with God, above government and permanently constraining it, that would demarcate the frontier of government power and secure the people's "universal, inherent, indefeasible" rights. Only with the consent of "a clear majority of all the inhabitants" could alterations be made. A constitution was believed only capable of securing rights if its stipulations could not be "altered or changed by ruler or people, but [only] by the whole collective body." Whereas room was made for judicial review, the purpose was not to "adjust" a constitution but to defend it.

The Federalist Papers are consistent with this view of constitutionalism. In Federalist 78, Alexander Hamilton writes (emphases mine):

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The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

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Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves 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.

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That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.

Had the Founding Fathers conceived of the role of the judiciary as not just defending the Constitution, but updating it for "changing conditions," then how odd for Hamilton to declaim exactly that in Federalist 78, and to dispute the need for a Bill of Rights in Federalist 84. I would think if the Founding Fathers had envisioned anything like a "living Constitution" whereby the constitution would be periodically adjusted by the judiciary, they wouldn't have consigned the declaration of essential rights to an afterthought, or left the list as short as they did. And, had the original public understanding of the Constitution included a federal judiciary with the ability to "adjust [the Constitution] to changing conditions," then given the contemporary revulsion of central power and philosophy of constitutional rule, the states wouldn't have ratified the document.

But they did ratify the Constitution, and it was put into practice, after which the earlier principles of constitutonalism continued to hold sway. In a letter written during his presidency, on March 27, 1801, to Eddy, Russell, Thurber, Wheaton, and Smith, Thomas Jefferson describes what he views as proper constitutional interpretation:

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The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption,--a meaning to be found in the explanations of those who advocated, not those who opposed it merely lest the constructions should be applied which they denounced as possible. These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question.

Of course, today, the explanations are obscured by the passage of two centuries. But we still have the publications in which those explanations appeared, so due diligence can mitigate against historical amnesia.

Joseph Story, a protegee of Supreme Court Chief Justice John Marshall, an influential Supreme Court justice in his own right, and the author of one of the dominant works on jurisprudence in the 19th century, the 1833 collection Commentaries on the Constitution of the United States, supports the revolutionary era idea of constitutionalism in his chapter "Rules of Interpretation" (emphases mine):

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On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may be fairly presumed, that the mischief is less than what would arise from a further extension of the power; or that it is the least of two evils. Nor should it ever be lost sight of, that the government of the United States is one of limited or enumerated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta set, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide and practice, then mere policy and convenience. Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes, or policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and for ever.

None of this is to say the principles of the Constitution can't be logically extended for the modern day. Just because Article I, Section 8, doesn't mention an air force or a space fleet doesn't mean Congress can't establish them; all military branches the Founding generation could have imagined appear, and little reason exists to suppose the constitution was understood to allow some branches but not others. Likewise, just because the First Amendment doesn't mention the Internet doesn't mean web users don't have free speech; had the Internet existed in 1789, it likely would have been included in the First Amendment, and including it now does no violence to the principle at hand. Here is your "wiggle room," Sam -- which isn't what proponents of a "living Constitution" have in mind.

Funny that you should mention "the government of the people, by the people and for the people" because, as Story notes, judicial reinterpretation of the Constitution, not to correct an earlier mistake a la Brown v. Board but to "adjust to changing conditions," constitutes an end-run around the people. If a constitutional change really has massive popular support, enacting it via constitutional amendment should pose little difficulty.

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Compare this to most state Constitutions, which are very detailed, long and tend to need to be re-written every 20-50 years.

If that's a bad thing, it's just an argument against long and detailed constitutions, not for judicial constitutional reinterpretation.

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I think that's a fairly gross mischaracterization as well.

You gave no reason why it's inaccurate, only why, to you, it's necessary.

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If we want to cripple Congress by making them pass every little tiny procedural rule of any bureaucratic agency, nothing would ever get done. At all.

Who said I wanted them to pass a bunch of tiny niggling rules for numerous spawling bureaucracies? You're right: A legislature is ill-equipped for that. I'd add that even effective oversight by legislative bodies is sheer fantasy.

That's another reason to disband these unnecessary and unconstitutional federal agencies.

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I'm not even sure what you're referring to here. If it's the current health care bill

Yes, and in the must not category, to politically disfavored drugs (alcohol and, although to lessening degrees, tobacco, are strangely fine, of course).

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American business is going to keep sliding backwards against the rest of the world, even the "oh so evil socialists," if our businesses keep being saddled with huge medical insurance bills that their competitors don't need to worry about.

I agree the government-created linkage, through tax policy, of health insurance and employment is ludicrous.

But portraying businesses in certain other countries as unencumbered with health care costs is economically obtuse. As economists like to say, "There's no such thing as a free lunch" (something supply-siders would do well to remember, but I digress). The difference in other countries is that health care costs are borne through taxation, as well as through the inefficiencies and dead-weight losses from government regulation and price controls.

Edit: I should add that employers in this country don't really bear the cost of health insurance; employees do, since it comes out of the total of what an employer is willing to pay for an employee.

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Yeah, because demolishing the American middle class and returning to the "Robber Baron" state of affairs where there are the very few exceedingly rich controlling all of the wealth and a great mass of dirt poor people is going to do wonders for our economy.

First of all, absolutely no empirical foundation exists to cynicism about immigration and trade. None. Almost all economists--even Paul Krugman, the equivalent in the profession of the crazy uncle who's locked upstairs for his own safety--support liberal immigration and trade policies because the empirical data show they massively help economies.

As economists William J. Baumol and Alan S. Blinder explain in the textbook Economics: Principles and Policy, Ninth Edition, economists almost unanimously back free trade because:

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• Every country lacks some vital resources that it can get only by trading with others.
• Each country's climate, labor force, and other endowments make it a relatively efficient producer of some goods and an inefficient producer of other goods.
• Specialization permits larger outputs and can therefore offer economies of large-scale production.

(Essentially, they're summing up the law of comparative advantage.)

I'm not going to comment on the "Robber Barron" thing because: 1.) I'm unsure what it has to do with trade and immigration; and 2.) This post is already absurdly long.

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I can agree, to a point. Ongoing operations and sources obviously need to be protected. Playing poker with all of your cards face-up, while everyone else's are face-down doesn't work very well.

But much of the secrecy these days involves shielding from embarassment and accountability, not attack.

All right, that's it for now.