T Nation

The Constitution of the USA


#1

Is the constitution the world's best piece of law, ushering in a new era of democracy as the PR suggests, or an archaic slice of ideology which has needed constant tweaking to keep up with reality and truly give people some rights?

Does it matter if something is 'unconstitutional' if it is correct?

Should law tell you what you can do (as in the constitution) or tell you what you can't do (as in many countries with no constitution)?

Does the constitution ever really get viewed objectively, or is it viewed too much through patriotic (and sometimes nationalistic) 'rose tinted glasses'?


#2

I guess it really shouldn't matter a shits bit of difference to a guy from England. The constitution was created because of rights being denied by GB. The constitution guarantees inalienable rights and if you start to interpret them in your own meaning as opposed to how they were written they don't stay rights for to much longer. If the constitution is a living breathing document then so is every law ever written so for that matter why have laws, why not let the supreme court decide what the flavor of this month is.


#3

It is a document that, like any other article created like man, can be used for good or ill. Unfortunately, some people put it on a magical pedestal and think that it cannot be touched, is infallable and must be followed to the letter.


#4

The Constitution is a pretty darn good document, as one could deduce from how well it has worked overall - though obviously not perfect.

As to whether something is constitutional or correct, I suppose you need to define your standards of judgment. If one is religious and takes the view that the Constitution is what the Supreme Court says it is, then something could obviously be wrong but Constitutional (e.g. abortion). From another perspective, one might think it's wrong but constitutional that white people can vote against affirmative-action programs.

I really don't think the constitution was meant to embody concepts of right and wrong so much as it was meant to provide the framework for the political system, under which we can decide issues of right and wrong at various levels.

BTW, the Constitution doesn't really tell you what you can't do as an individual, except in very, very few instances - it tells the government what it can't do (or at least it used to serve that purpose when it meant what it said).


#5

The purpose of the US Constitution was to create a federal government and define its powers. Many of its principles - seperation of powers, a Bill of Rights, bicameral legislature, etc. have been adopted by many nations. It has stood the test of time for over 200 years. It can certainly be "touched"; through the amendment process, as it already has been 27 times. If one does not "follow it to the letter", what is the point of law at all? Things that should be changed can be and have been, but not throught the judicial branch.

A bit of a tangent, I know....


#6

Not a problem. You obviously understand how the constitution should be used. My statement was for all of the strict "constitutionalists" that feel that it should not be changed, but should be followed "as is". Nevermind the fact that it has changed throughout its lifetime depending on the situations that the US is in. I have always felt that it was to provide a framework for the structure of the US government and not a means to an end itself. However, there are many out there that don't share that opinion.

BTW, could you tell me which other countries have adopted this government style from the US Constitution? This is a serious inquiry, not an attack. I just find that interesting considering that we are one of the youngest nations on earth and I can't think of any offhand. Probably because it is at the end of my workday. The brain is shutting down.


#7

More unfortunate than those that take a strict constructionist view are those that think that everything is relative and that the constitution shouldn't be followed wrt the original intent of its creators.

Not adhering to it's original constricts gives rise to legislation from the bench. That is what you have seen happening lately. people that can't get their agendas past the voters via democracy have turned to activist judges who are more than happy to bastardize the intent of the constitution.


#8

It's a fine piece of paper with the principles for good government. A shining example of rightful thought that has served as an example for the whole western world. There's no reason to question that. Alas, realpolitik is realpolitik, principles get often tarnished and letters can be stretched.


#9

Exactly what I was trying to say, way to put it RJ.


#10

This is true. Legislation from the bench is an issue. However, the problem is that we have people in 2005 trying to understand what the original intent of a document that was written in the 1700's. The times are different than they were then. This document was not written by the hand of God, but by imperfect men. As such, it needs to reflect the needs of the people of the times. This is why we have the ability of making ammendments to the constitution.

The original intent of the constitution did not take into consideration anyone who was not a white male. That is a fact. All Women, Black people, Asians, Latinos, anyone who was not a white male was not considered. If we stick to that "original" intent, many of us would not be protected under the law. This is why ammendments were made to the document.

I do not have a problem with the sections that deal with the government structure and laws that do not infringe upon basic human rights, but I have a real issue with those that want ONLY the original intent of the document as a complete whole. They are the ones that worry me.

BTW, "people that can't get their agendas past the voters via democracy have turned to activist judges who are more than happy to bastardize the intent of the constitution." works both on both sides of the aisle. Don't be fooled in believing its only one side over the other. The last few incidences that worked this way came from ONE side of the aisle that says "activist" like it was a curse word.


#11

You obviously dont understand the strict constructionalist position at all. We have no problem with the Constitution being changed...as long as its done through the amendment process. And yes, it should be followed "as is"...that is,
until it is legally changed.

Define what you mean by "it has been changed." If you mean the Constitution has been changed, then yes, you are correct, through the amendment process it has been changed; no one has a problem with that. The problem is when people in a position of power use subjective opinion while interpreting objective, written statements. Yes, sometimes that opinion leads to a beneficial end...and sometimes it doesnt. But we are supposed to be a nation of laws, not men. If you dont like the interpretation you get with a plain reading of the Constitution then by all means, amend the damn thing...but dont twist the text to fit your opinions of how things ought to be.

Our Constitution basically changed the defenition of the word. Prior to it, they werent written in stone so to speak. Like in the case of Britan, a constitution was more or less the totality of a country's legal customs. In that sense, we definitely influenced the rest of the world; Im pretty sure we have the oldest written constitution.


#12

If there is a doubt about the intent - then pass a law. The judiciary should give deference to the original intent of the constitution whenever there is a question, and allow legislators and the people decise the gray areas induced by a changing society. Either that, or make the judiciary an elected office. As it stands they are legislating free of accountability - and that is wrong.


#13

I would submit that documents from everything from the UN Declaration on Human Rights to emerging democracies such as Iraq have used the principles of the US Constitution as a model. Not every part in each case, but as a guide and inspiration.


#14

For once, I agree with you. I don't agree with legislation from the bench, simply because there is no debate about it. As for the Constitution, it is a fantastic document that is truly a landmark in human history as far as ideas go. The Magna Carta, the Constitution, these are great documents written by good men with pure ideals.

Of course, we didn't follow its dictations back then either. "Life, Liberty, and pursuit of property". Of course, a black man was property back then. A woman couldn't vote. We were mass murdering the Indians in what can be called a genocide...So the Constitution, while a great document, was never followed by us completely.

To follow this document, written in 1787 (?) or thereabouts, is to deny that the world has changed as much as it has since then. There is no one in the 1790s that could have seen the rise of computers, cell phones, satellites, etc. National security back then was making sure everyone had a musket. Things are different, and it is not the best thing to do to take these laws that were meant for so long ago and interpret them strictly as is. I think that Congress should take issues as they come, and use the Constitution as guidelines more than strict interpretation. Life has changed too much, politics have changed, and the world has changed. The Constitution must change with it.

And let's not forget, the damn thing is not infallibe. For God's sake, they outlawed drinking! If they never changed that, where would we be today!?


#15

I think you're confusing something here. A strict constructionist is NOT against changing the Constitution -- at least not against changing the Constitution via the official manner of changing the Constitution, which is via the amendment process.

A strict constructionist IS against reading stuff into the Constitution that isn't there, reading stuff out of the Constitution that is there, or generally changing the meaning of what something was understood to mean when it was written -- particularly when it's 5 out of 9 unelected judges changing something that an amendment would require be changed by supermajorities of both legislatures and 3/4 of the states...

BTW, no one has a Constitution exactly like ours, but you can find very similar systems. I guess it depends on which features you find most important in guaging similarity.


#16

I understand your point but the Constitution is the legal foundation of this country...not guidlines that should be considered when passing law. The whole reason there is an amendment process is because our founders realized (and said as much numerous times) that as the times change the Constitution would need to change with them. Once again, if you dont like what the Constitution says...amend the damn thing!


#17

The Constitution was amended to change your first two examples. The last wasn't officially Unconstitutional (though violating our treaties repeatedly was illegal). Actually, genocide still isn't Unconstitutional per se -- or if you argue it is, it's not the murder part you're arguing is Unconstutional, but rather the implied violation of equal-protection.

Basically what the point is is that the Constitution isn't meant to address all evils, be a moral code, or even a penal code -- it's an organization of governmental powers, with some specific powers granted the federal government which have morphed into almost a general power, and some very specific limitations on the application of that power with respect to individual citizens.

No, to follow the document written in 1787 and as amended is NOT to say the world has not changes since then. It is to say that there was a point to having a written Constitution passed by a supermajority, rather than simply a floating conception of common law that changes with time (Hello British folks).

If the world changes, amend the Constitution. And if you can't amend it, maybe the world hasn't changed as much as you thought...

BTW, this isn't to say that you can't apply principles to new situations - it's not legislating from the bench to fill a gap in the idea of "search and seizure" as it applies to computer files. To the extent judges need to do that, they should apply the concept as it was intended when the law/Constitution was passed, and be true to that principle when applying to new facts. That doesn't mean changing the meaning of something so that it applies differently to something that has existed forever because a few people decide "society has changed," which is what would happen if some judge decided that the Constitution decreed gay marriage must be legalized.

As I said, if society has changed, amend the Constitution the proper way -- if you can't, then it hasn't changed as much as you thought. And whether that's right or wrong, the fact that you can't simply decide it means something new is as much a protection of individual liberties as anything else.


#18

I understand your points. And yes, I understand that this is the purpose of amendments. Altogether I think the document has done very well as far as defining our government and seperating powers, etc. It also provides a good start for other countries to base theirs off of. I don't have too many qualms with the thing itself.


#19

I agree. It speaks volumes about the character and foresight of the original founders of the country. Men of genius get together very rarely in history. 1787 was one of them.


#20

Well said, Boston.