Order now The founders intended for the Constitution of the United States to be a document that would aid in protecting the rights of the American people while also developing a federal government.
If you need a web site designed or updated contact Matthew at WCZone for quality work at a fair price. First published in the October issue of The American Legion magazine The subject of constitutional interpretation may seem like a topic best fitted for an ivory-tower debate, but it actually has a very real and dramatic impact on daily life as will be demonstrated shortly.
In recent years, two competing viewpoints have emerged. Probably the first exposure most citizens had to the two views came during the presidential debates. When asked what type of judges should be placed on the bench, candidate Bush responded: Proponents of a living constitution believe that we should not be bound by what dead white guys wrote two centuries ago when slavery was legal, women could not vote, and horses were the fastest means of transportation.
Such rhetoric makes a living constitution sound appealing, but it is actually a complete misportrayal of the difference between the two philosophies. In reality, both accommodate an evolving society; Living vs dead constitution fact, under the strict construction or originalist viewpoint, Article V of the Constitution requires that the Constitution be a living document.
Under the living constitution approach, history and precedent are largely irrelevant; instead, unelected judges create policy to reflect modern needs through the constitution they themselves write.
We are under a constitution, but the constitution is what the judges say it is. For example, although 80 percent of the nation currently opposes flag desecration, living constitution judges have ruled that the people are wrong on this issue and that the flag cannot be protected. Equally striking is the number of recent occasions in which living constitution judges have overturned statewide votes wherein the People clearly expressed their will e.
Samuel Adams pointed out the strength of this approach: That a small group should be able to annul the will of the People and enforce its own desires upon the masses?
Such an option is unacceptable under original intent. As explained by George Washington: The will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man.
Perhaps even this may sometimes err.
But its errors are honest, solitary and short-lived. As Jefferson further explained: The minority does have equal rights, but equal right is not the same as equal power; the minority is never the equivalent of the majority and should never exercise control over it. Therefore, under this anti-majoritarian view, the greater the public support for a position, the more likely a living constitution judge is to strike it down.
Yet American history has proven that the best protector of minority rights is not the courts but rather the People. For example, former slaves received their constitutional rights not from the courts but by the majority consent of non-slaves; women were similarly accorded the constitutional right to vote not by the courts but by the majority approval of men; the constitutional rights accorded to the poor by the abolition of the poll tax came at the majority approval of those who were not poor; and the constitutional right allowing eighteen-year-olds to vote was given by the majority approval of voters not eighteen-years-old.
Additionally, all of the constitutional protections for individuals and minorities established in the original Bill of Rights e. In other words, all minority rights in the Constitution have in all cases been established by majority consent.
In fact, the courts have a very poor record of protecting minority rights. Although living constitution proponents love to point to the Brown v. Board of Education decision that ended segregation as proof that the courts protects minority rights, they conveniently forget to tell the rest of the story.
It is not surprising that judges are fallible, for as Jefferson pointed out: Our judges are as honest as other men, and not more so. While living document enthusiasts disparage strict constructionists as being narrow or restrictive, Justice Antonin Scalia counters:Jun 23, · CONAN: And when they talk about the living document or the living Constitution, these are people who say wait a minute, we didn't have cars in SAVAGE: If you take the Scalia originalism view, clearly they don't have a case.
Here is a rhetoric tip: “Living” is better than “dead.” Ask any child: “Who is a friend of the Constitution, those who say it is living or those who say it is dead?” Debate over.
But “living document,” the favorite slogan of judicial activists on . The Constitution has been protecting the citizens of the United States for over years, and far be it from us to change what is not broke.
We will write a custom essay sample on Living vs. Dead Constitution specifically for you. A living document, also known as an evergreen document or dynamic document, is a document that is continually edited and updated. An example of a living document is an article in Wikipedia, an online encyclopedia that permits anyone to freely edit its articles, in contrast to "dead" or "static" documents, such as an article in a single edition.
Feb 15, · WHETHER or not you agreed with the man, there is no question that Justice Antonin Scalia changed the United States Supreme Court, the way that the Constitution and laws are interpreted and the image of a Supreme Court justice far more than President Ronald Reagan could ever have foreseen when appointing him.
The Constitution: Original Intent or ‘Living Document’? Proponents of a living constitution believe that we should not be bound by what dead white guys wrote two centuries ago when slavery was legal, women could not vote, and horses were the fastest means of transportation.