Quote:
Originally Posted by Pete F.
I'll stick with this, change the names as you wish. I am assuming that they will be Good and Evil.
The sphere is not a physical sphere but a description of how our society moves and changes and apparently too hard to comprehend.
"That by whatever name you call the two sides of the argument about Constitutional Law, they are both important. That while the Constitution is a largely static document, it can change thru amendment and interpretation. The interpretation part is controlled politically by the appointment of Judges for life so that a political party gets to choose and it has a long term effect but not a permanent one.
One may choose to select Originalist appointees or Living Constitutionalists, but neither is prohibited or required by the Constitution."
|
You and Spence have a lot in common in your use of language. Your posts, like this one, are a flow of vague words that seem to imply something substantial but never really deliver it.
And what does the quote you will stick with mean by "the two sides of the argument about Constitutional Law" and that both are important? Important in what way?
There are more than two Progressive methodologies taught and used by Justices to "interpret" constitutional cases. e.g., Monumentalism, Instrumentalism, Realism, Formalism, Cognitive Jurisprudence, Universal Principal of Fairness, Rule According to Higher Law, Preferred Freedom (or Selective Rights Jurisprudence), Utilitarian Jurisprudence, Positivist Jurisprudence, Sociological Jurisprudence, among others such as strict scrutiny, etc. These are mostly concocted ways to skirt constitutional text and deliver verdicts that could not otherwise be found in the structure of the Constitution and are means which are not bound by any form of originalism or strict constructionism. This is especially true in cases which test actual articles in the Constitution. In cases needing decision on statute law, there is a little more leeway since many statutes are not as strictly written as is the Constitution.
I assume your quote is lumping all forms of "originalism" into one "Originalist side" in which change can only be made by amendment, and all of the Progressive concoctions lumped into a loose construction, a "Living Constitutionalist side" in which change can also be made by "interpretation."
The writers of the Constitution did not conceive of constitutional text being changed by interpretation. Text was only to be changed (replaced) by amendment. "Interpretation" was to be the application of the text to the facts of the case. "Interpretation" that changed the meaning of the text in order to arrive at a decision not grounded in the original text is obviously not an application of the text but actually a rewriting of it. This sort of "interpretation" does not create a "Living Constitution." It leads to a "dead" one. It creates a new unwritten constitution that replaces the written one which no longer applies since the text is completely malleable and therefor meaningless. The "Living Constitution" nullifies written text and adjudicates instead by unbounded and unprescribed judicial opinion. The Living Constitution, in effect, is not a document, it is the constant mill of personal opinions cranked out by the majority of the SCOTUS jurists.
And how are both "sides" important?
The "originalist" side of the argument secures unalienable individual rights and liberties which can only be abridged by the representative vote of those individuals.
The "Living Constitution" side guaranties no individual rights but secures to government the ability through its Court the power to decide what rights individuals and collectives have