Saturday, September 17, 2005

Living Document and Strict Constructionism

Sorry, I missed a day. I had to attend my brother's school's reading of the Constitution. Today, however, is Constitution Day. I will make up for it... Today we discuss the differences between the Strict Constructionist approach to reading the Constitution and the Living document approach to the same.

A Strict Constructionist reads the Constitution literally. He holds to its words and tries to remember the meaning when it was written. A Living Document approach advocate sees the Constitution as adjustable to fit the times. He would argue things like: the founders didn't understand the level guns could become when they wrote the 2nd Amendment.

Strangely, there is a discrepancy in our own government's reading of the Constitution. The Congress and President read it from a Strict Constructionist perspective and only 'adjust' what the courts say they must. The Supreme Court has taken to a Living Document approach and tries to understand what might change if it were written today. This was not, however, always the case. Because Congress and the Executive branch are both 'bound' by the Constitution they are limited to reading it as a Strict Constructionist would. They were well tied by it for more than 70 years because the Supreme Court was reading it from that same perspective.

In Pollock v. Farmer's Loan and Trust Co. 158 U.S. 601, as recently as 1895, the Supreme Court had this to say, IN ALL CAPS:

"The words of the constitution are to be taken in their obvious sense, and to have a reasonable construction. In Gibbons v. Ogden, Mr. Chief Justice Marshall, with his usual felicity, said: 'As men whose intentions require no concealment generally employ the words which most directly and aptly EXPRESS THE IDEAS THEY INTEND TO CONVEY,'"

Resulting from this approach, the federal government was kept extremely small and limited for quite a while. The Living Document approach has resulted in a larger, more powerful federal government and has moved much of the governing powers from the states to the federal power. Whether or not this is a bad thing, I leave for later. I will expand on how the government has expanded recently later today when I address the Commerce Clause. It's Constitution Day, sit down, take out a copy of the Constitution, read a small portion and look up any words you don't know. Then sit down and try to understand what was being said.

Sincerely,
Ted

The strength of the Constitution, lies in the will of the people to defend it. – Thomas Edison

1 comment:

demonsthenes said...

I'm surprised the terms "progressive justice" & "orginalism" are no where on this page.

Originalism consists of two theories(not to be confused with Strict Constructionism.);
-original intent is the view that the constitution should be consistent with what those who drafted and ratified it meant it to mean.
-orgininal meaning, which is basically textualism, means the constitution should be based what the text would have meant to people at the time of its ratification.

Slight differences but should be noted.
Justice Scalia defines the differences between originalism and Strict Constructionism perfectly.
"He uses a cane" means "he walks with a cane", not what a strict use of the words might suggest." Strict Constructionism would be the latter.

Strangely, there is a discrepancy in our own government's reading of the Constitution. The Congress and President read it from a Strict Constructionist perspective and only 'adjust' what the courts say they must. The Supreme Court has taken to a Living Document approach and tries to understand what might change if it were written today. This was not, however, always the case. Because Congress and the Executive branch are both 'bound' by the Constitution they are limited to reading it as a Strict Constructionist would. They were well tied by it for more than 70 years because the Supreme Court was reading it from that same perspective.

The government is not "bound" or limited to reading it a certain way.
It all depends on who is sitting on the SCOTUS bench and sitting in the in the oval office. Justice Thomas usually sides with the orginalism theory, and Sandra Day O'connor usually favors the more liberal "progressive justice"/Living Constitution.

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