My favorite quote from day 1 of the Alito hearings
I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things.
It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up. ...
The liberty component of the Fifth Amendment and the 14th Amendment ... embody the deeply rooted traditions of a country.
And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations.
The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.
posted by Steve72 @ 7:11 AM
7 comments
7 Comments:
I quite agree. Even a "strict constructionist" (a term I disagree with) would probably agree with this statement. The problem is jumping from a "living Constitution" to an "entirely unprincipled Constitution."
I agree with you. I think all of the hemming and hawing is over a dispute in degree.
(Well, actually I think the debate is results-oriented rather than process-oriented, which is unfortunate.)
Good point, Steve. But I am curious as to why you think the process/results dichotomy is an unfortunate one.
What I am basically saying is what we were talking about a couple months ago. "Strict constructionist", "textualist" "originalist", etc. are all used as shorthands for "pro-life".
I think the criticism of judges as "activist" is less related to their analysis and more related to results that the particular Senator disagreed with.
I think I recommended it before, but Posner's foreword to this year's Harv. S.C. Rev. was pretty awesome ("A Political Court"). It's very relevant to this discussion and, in particular, the discussion on that other Forum-that-shall-not-be-named. I wish I could remember most Posner's dense material.
No. The Constitution means exactly what it says. It was written for the situation that existed when it was devised. The framers recognized that situations would change, and for that reason they allowed for amendment. If the people feel that conditions have diverged so far from that existing at the time of the founding - that is, basic, fundamental principles -that a change to the basic law was required, then they could do so. Otherwise, no. The decision is in the habds of the people, not the courts.
Well, that statement does not contradict anything that is posted here. However, if you are arguing that the application of the principles found in the Constitution cannot vary depending on particular facts presented to the court, then you are ignoring (among other issues) Article III of the Constitution, the Ninth and Tenth Amendments and over two-hundred years of legal jurisprudence.
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