A "Dead" Constitution
Jonah Goldberg today in National Review:
This is a battle between the forces of life and death, and, as inconvenient as it may be to the marketing efforts of abortion opponents, we are resolutely on the side of death. For we are those who believe the only good constitution is a dead constitution.The reason I bring this up is to pick the brains of our own legal eagles. [That, and I like the line "This is what leading constitutional legal theorists call 'stupid.'"] I tend to agree with Mr. Goldberg, but then I don't have aspirations to law school or clerk for the Idaho Supreme Court. [Ahem.]
We’ve all heard about how great living constitutions are. The most extreme, but essentially representative, version of this “philosophy” can be found from the likes of Mary Frances Berry or the Los Angeles Times’s Robert Scheer. They matter-of-factly claim that without a “living” constitution, slavery and other such evils would still be constitutional. This is what leading constitutional legal theorists call “stupid.” The constitutionality of slavery, women’s suffrage and the like were decided by these things called the 13th, 14th and 15th Amendments. Also, contra feminists, women got the vote not through a living constitution but by the mere expansion of the dead one — via the 19th Amendment.
So - what say you?
posted by Tyler @ 10:30 AM
7 comments
7 Comments:
Not to my knowledge. Tyler, how 'bout inviting Mr. Harrow to join us?
Note: I am not a legal eagle.
I am inclined to view the Constitution as dead...in that it should serve as the foundation, the unalterable rock on which our government stands.
In this light, it serves the same function in government as the Ten Commandments do in religion. You can't alter the Ten Commandments when it's convenient for you (e.g. Thou shalt not commit adultery, unless you are President and your name is Bill). The Ten Commandments, although dead in the context of this article, are expandable...just like amendments to the constitution. For Catholics it may be expanded to include, Thou Shalt not use contraception. Or for the LDS church, Thou shalt not drink alcohol.
It is essential that the Constitution stays dead so that tyranny in this country can stay dead as well.
I need Mr. Harrow's contact info emailed to me if I am to invite him.
And i thought that you were talking about our european constitution. We all must thank the french and the dutch. Next will be the Euro and then the UE itself... But from our point, you also have some problems...but not 25 guys that hate each other for more than 1000 years...
Here's what the Great One says about it in his 'A Matter of Interpretation':
"Perhaps the most glaring defect of Living Constitutionalism, next to its incompatability with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution....What is it that the judge must consult to determine when, and in what direction, evolution has occurred? ...As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy."
- Antonin Scalia
Not ROB Horrow?! He was the only reason I ever checked my email in law school.
No, not Rob...but his younger brother.
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