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.
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.
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!?
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.[/quote]
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.