Talk:Living Constitution

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[edit] Revamped Article Since June 13, 2006

Just to be clear, any discussion here preceding June 13, 2006 predates the writing of the vast majority of the article. About 95% of the current article was written since that time (without discussion here as of yet). Mackan79 05:36, 29 November 2006 (UTC)

[edit] Notes to Simon Dodd on Changes made by The Cormac on 4-22-06

I have noticed that you and another user (ardenn) keep reverting this page to the version you authored, therby losing various other readers edits and rewrites. Please stop doing this. It seems to me that the version you repeatedly spike has two clear advantages over your own.

Firstly, it makes reference to other ways in which the phrase "the living Constitution" is commonly used in the United States by school teachers, authors, public officials and the like. This seems to me useful and even essential for an encylopedia user, who might otherwise be confused or mislead if the only explanation given is for the privileged usage of the phrase the article chiefly details.

Secondly it much more forthrightly details the fact that "living Constitution doctrine" is defined exclusively by its detractors and that its very existence as a philosophy (rather than as a hypothetical construct) is denied by those who are supposed to hold the view.

Your preferred version of the article is, I have no doubt, sincerely intended. It nevertheless sufferes from very strong POV biases. I do not dispute that the more recent version does as well. Bias is inevitable when one person is writing, no matter how hard they strive for objectivity. Part of the beauty of Wikipedia is that the biases of large numebr of users, acting in a good faith effort at objectivity, will tend to cancel each other out. I have made changes in the most recent page version designed to shear the piece of biased POV and overly provacative statements, but I am one person and it will need many other pairs of eyes. I suggest you look it over and try to imporve it by deleting biased statements you feel I missed and adding useful information that the article lacks (for instance, it still seems to me the section defining exactly what "living Constitution doctrine" is, or is alleged to be if you prefer, is quite nebulous). When, in the passage of time, other users unkown to us put their eyes and talents to it, something stronger then anything any of us would write on our own will emerge. What I implore you not to do is simply reverting repeatedly to some "pristine," sacred version.

The Cormac 16:30, 22 April 2006 (UTC)The Cormac

I think you're misunderstanding my revert policy; it isn't that I have a preferred version of the article which I'm determined to maintain, which is why I heartily suppported the reboot by User:Vincent Vecera (see notes downpage), and proceded to continue editing from his text rather than reverting to my own, and have modified many edits I didn't agree with - both here and elsewhere - rather than outright reverting. My policy on reverting rather than fixing is fairly simple: when an edit is too irretrievably broken to be fixed - that is, that in order to make it readable or NPOV would take to many changes that to do so would obliterate almost the entire substantive content of the edit - it simply isn't worth the time and trouble to do so (nor the damage to the integrity and credibility of the article that will accrue in the intervening time) and it is much better to simply scrub the edit. If the information is so pressing and worthwhile, someone will add it back in in a more acceptable format.
So the upshot is, it isn't that the version I'm reverting to is good, it's that the material user:141.155.59.197 insists on repeatedly trying to add is not really very good, being both badly-written and implicitly POV. I simply cannot agree that the article, absent this edit, "suffers from very strong POV biases", or still less, that (presuming such deficiencies exist arguendo) that they are corrected by these edits. The bulk of the text and structure exist from User:Vincent Vecera's reboot, and it bears noting that Vecera is scarcely what one would call an opponent of the theory. If you want to see what a genuinely POV article on the living constitution would look like, cf. the article today with the article as it existed before Vecera's work.
Which brings us to your adding back in substantial chunks of that material. I have in the past, and continue to, give deference to actual, registered Wikipedians, even when the material itself is in doubt, and it certainly factors into the "revert or fix" equation that the material was previously being added by an anonymous user (a fortiori one who, on a quick examination of the other edits by user:141.155.59.197, shows a pattern of ill-informed edits elsewhere; see, e.g., Abe Fortas) who by definition recieves zero deference. I continue to have grave doubts about the quality of this material, but it has now been added to the article by a registered Wikipedian. What to do? I suppose I'll have to let them lie for a bit of time and see what other editors make of it, aside from perhaps a few minor changes. I'm willing to go along to get along.Simon Dodd 00:58, 23 April 2006 (UTC)

[edit] Reboot 12/11/05

This article is an abomination. It is absolutely terrible, almost entirely original "research," and completely wanders off topic. It needs to be started over entirely. I will work on an expansive version once I'm done grading for this semester, but until then I'm deleting this p.o.s.--Vincent Vecera 01:48, 11 December 2005 (UTC)

  • Huzzah! Finally someone who objects to it and actually proposes a substantive argument instead of just whining about what someone else ought to do! (I'll try not to take the "abomination" thing personally, Vince). Anyway, I think Vince's alternative text is good; I've done a little chopping and changing, and added a section from Trop explaining in more detail the living documentarian paradigm in the most NPOV terms I can muster. Good to see some interest revived in this article. Simon Dodd 20:49, 21 December 2005 (UTC)
Good work on cleaning this up. Maybe I'll get some done in the next few weeks, maybe I won't. Just wanted to commend you on your cleaning it up as we restart it. Vincent Vecera--
Reading this anew, I suddenly realize that I put a typo in my previous comment - I meant "alternative" not "argument," and realize that what I actually put might sound sarcastic. In any instance, as I noted further down in the comments, I think this article is valid and should be here, it's just that no-one seemed to be showing any interest in actually proposing alternative text rather than just complaining about the text that was there. As you'd expect, it's pretty difficult for me to write an article on this topic that isn't at least partially POV, simply because I think this theory is absurd and makes no sense. I do think, however, that even describing the theory in neutral terms will suffice to make my argument. ;) Simon Dodd 18:18, 10 January 2006 (UTC)
Does anyone have a citation for this?
"The term is rarely used by "adherents" of the philosophy, who claim that it is a canard (or at best, a caricature) of liberal jurisprudence."
I don't think that's a fair characterization. The "Living Constitution," I think, is most often brought up by liberals, and many conservatives have embraced the idea of a "living Constitution." A couple of examples just from the Bork confirmation hearing:
1.
Senator BIDEN. I agree with Justice Harlan, the most conservative
jurist and Justice of our era, who stated that the Constitution is,
quote, "a and living thing."
2.
Senator METZENBAUM. The basic problem, as I see it, is that to
you the Constitution is not a living document; it is not a charter of
liberty. And if you cannot find protection for the individual in the
fine print, then the people of this country are out of luck.
At the Kennedy confirmation hearing, Biden agained referred to the "living Constitution."
And Senator Kennedy insisted that, "[The American people] want a Justice who understands that the Constitution is not just a parchment frozen under glass in 1787. It is the living, growing embodiment of our history, traditions, and aspirations as a free people."
At the Souter confirmation hearing, Senator Kohl, that a justice should be "able to read the Constitution as a living, breathing document." And the chairman said, "We are looking for women and men on the Court who understand, to use the trite phrase often used in high schools, that it is a living, breathing document."
This is hardly conclusive as to general usage, but at least at confirmation hearings, it seems that liberals are the ones who speak of a "living Constitution."
---- 69.19.2.36 17:07, 7 March 2006 (UTC)

[edit] Meaning of "living constitution"

Previous article (stub, really) said that a living constitution is one that can be amended. This is not what people mean in English by "living constitution." (There are no national constitutions that cannot ever be amended.) What they mean is what is discussed in the article The Living Constitution. Searches for "Living Constitution" should be redirected. User:140.180.154.160 08:18, July 10, 2005

[edit] Article bias

This is a potentially great political theory and deserves not to be viewed only in a negative manner, even with its downsides its positives are also there! Point out positives as well. I am only a LD debater, no expert, so we need someone who is an expert who can point out what is right with this theory as well....Lunarloki 26 October 2005 9:38 (Mountian Time)

As I noted below, July 5, I don't disagree that the article should be more balanced. You would think that if the theory was so good, by now at least someone would have stepped forward to offer that balance, to put forth a cogent and reasonable argument in favor of the living constitution, wouldn't you? Yet no one does. Perhaps the theory isn't all that good after all. ;) --Simon Dodd 16:22, 10 November 2005 (UTC)

I'd like to add my agreement with the criticism mooted. This article is incredibly biased, as the author to their credit admits. The article should provide information about living constitution theory (or really just the liberal alternative to originalism), not just relate how dumb the author thinks it is. There should obviously be references to actual writers who espouse the theory. The person to cite and discuss is probably Ronald Dworkin. Sadly, I'm not expert so someone else should do this, but no article would be better than what's there now.

This article is very biased toward the originalist standpoint. The goal of this website should be to provide information, not to criticize. I find that this particular article has very little information, but rather a large amount of criticizm against nonoriginalism.


I'm probably being unfair, maybe I misunderstand, but I feel this article has a fair amount of bias to some degree.

It might be worthwhile for somebody who has more of this judicial view to alter it.

Note, I wouldn't feel it right or proper to do so, as I am not an American citizen.

(A rough argument would be that originalism seeks, at least from the point of view of people such as Scalia, the opinion of a normal person living around that time. This sounds unreasonable to me - Bills of Rights are usually written by "radicals" and don't affect the majority as construed. Also, I feel that the ninth ammendment as read pushes more for the case of an expansive reading. But maybe I'm being wrong? I'm just surprised that there is no page about this. -15:51, 4 July 2005 User:82.133.32.26

  • I'll certainly concede that there is a serious lack of balance in the article as it is currently written - largely because I wrote most of the current text, and as far as I can see, the living constitution theory is utterly devoid of merit. I do think this article should exist, and I think that there should be some balance brought, but I can't bring that balance; thus, the article will have to remain out of balance until someone who thinks the living constitution is a great idea decides to contribute to bringing balance to it! ;) Simon Dodd 5 July 2005 21:50 (UTC)


    • There is allready an article on originalism, and it is written in a manner that is fairly positive to the theory. Now this article, supposedly an opposing theory, is also written - "What follows is a discussion of Originalism's "Living Constitution Theory" from the Originalist point of view:". Two articles which are essentially about originalism, and no article about opposing beliefs. - Matthew238 23:13, 25 November 2005 (UTC)

[edit] Article title

Two things:

  1. This article probably shouldn't have the definite article "the" in front of it. Is it easy or hard to rename it?
  2. Legal literature generally refers to this interpretive philosophy as "nonoriginalism," not "living constitutionalism" (although there are references in the literature to "living constitutionalism.") Unended July 7, 2005 03:07 (UTC)
I think there are other titles that could be added - "Living Constitution", "Living Constitutionalism" and so on - but I think the main page should remain under the definite article. Plus, I don't know how to alter it, I've wondered the same aqbout Gonzales v. Raich. ;) I think generally, "the living constitution" is a term that's recognized, and it can sound in equal measure, affirmatory (if you buy into it) or mocking (if you reject it). "Nonoriginalism" sounds...Just weird. ;) I mean, you're right, that term is certainly used, but it seems odd to me, and I tend to think of "The Living Constitution" as being a fairly specific theory, rather than simply a blanket term for any legal theory that's wrong.Simon Dodd 7 July 2005 20:38 (UTC)
The article title should not have the definite article. After all, we have United States, not The United States. —Lowellian (talk) 11:50, July 12, 2005 (UTC)

Dred Scott is not a substantive due process case.

Dred Scott v. Sandford, 60 U.S. 393 (1856) is proverbially a substantive due process case; indeed, it is the first SDP case. See id. at p.450: "the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."--Simon Dodd 16:17, 10 November 2005 (UTC)

[edit] What does it mean?

Whether or not the article is biased it doesn't tell us what this doctrine *is* beyond a one sentence slogan.

[edit] Scalia's comments on the "living Constitution"

Does this really belong in the article? The link doesn't even seem to work anymore. -- WikiAce 23:38, 14 March 2006 (UTC)

Niether does yours WikiAss

Thank you for pointing out the broken link, which is now corrected. Justice Scalia is, in comparison to all others, in the best position to know the Conservative arguments against the notion of a "Living Constitution" and he is the to best express them. Who is better positioned? Who has better Conservative credentials? His presentation on point to the Federalist Society audience punctuated by his comment about "idiots" shows the depth to which the right is willing to vent this critical ideological belief. This was a very interesting choice of words and carefully chosen venue for Justice Scalia. One can think of no better Conservative to provide that kind of definition. If you have one, I'd like to see it. David F. Traver 03:24, 15 March 2006 (UTC)

[edit] Worldwide View Tag

I added the {worldwideview} as this term and concept is used in multiple countries, not only the United States. -- Deet 02:42, 6 April 2006 (UTC)

  • Is the sectioning already carried out to date not adequate to merit the removal of this tag, and if not, what DOES need to be done before the tag is no longer relevant? It seems to me that the tag should be removed now, since the discussion of American practise has already been broken off into a subsection. I am therefore removing the tag; if you disagree, please feel free to comment here and replace the tag. Simon Dodd 20:58, 13 April 2006 (UTC)
  • ok Deet 01:03, 1 June 2006 (UTC)

[edit] Wordwide view tag - redux

I readded the {worldwideview} tag because the introduction isn't very neutral to all countries. It specifically talks about the USA, when they take up 2/3 of the article. Ardenn 19:01, 28 April 2006 (UTC)

To what extent is the phrase used in other countries? Only one other country is discussed in the article, Canada, and the very first thing said in that section of the entry is that our friendly neighbour for the north actually usually uses a different term to describe something rather different.I think the WWV tag would make more sense if the article were not primarily focussed on the U.S., but so far, I see no indication that other countries use the term meriting the change in the introductory paragraph (this isn't to say I approve of the introduction as currently constituted, as dscussed ante). Simon Dodd 03:35, 29 April 2006 (UTC)

[edit] Continuing Concern that Article Gives Warped View of Actual Usage

This article is certainly more robust and balanced then when I last looked at it some months back. However, I remain concerned with a basic accuracy problem. Although living constitution is described as a “liberal judicial philosophy,” I know of not a single judge or legal scholar of renown who describes themselves as such or would accept it as a fair description of their philosophy. It seems to be more of a political catch phrase used in Democratic/Republican partisan politics then a school of thought among actual jurists. Even in this case, it describes a general attitude rather far from the articulated philosophy that still seems to be suggested by this article. Use of the phrase “living Constitution” to describe a specific judicial philosophy seems to happen almost exclusively in the attack (that is, by critics of the purported view).

The article also specifically states:

"However, just as some conservative theorists have embraced the term Constitution in Exile (which similarly gained popularity through use by liberal critics), some have embraced the image of a living document as appealing."

I question the accuracy of this comment. The phrase may be gaining popularity among some politicians (such as former American VP Al Gore, whose inclusion in this article seems a bit strained and extraneous, by the way) but can anyone name a single legal gun who has embraced the description? If anyone can add a few such names (with citations, of course) to this article, it would greatly improve it and relieve my concerns.

The Cormac

Cormac,

Thanks for the comments; I've been trying to turn this into a more respectable article.

In response, though, I would say that I've seen multiple references to the living Constitution by those who support the idea. As you say, these tend to come from politicians, but doesn't that count? We're talking about the meaning of the Constitution here, after all, not some obscure academic theory. It's for this reason I thought the Gore comment was especially pertinent, in showing the continuing relevance of the debate (at least as of 2000), as well as a concise statement of the intended meaning of the term as used by its proponents.

In any case, I just added links at the bottom to Jack Balkin and Brian Leiter defending the idea, both legal academics. I think the Balkin Slate article particularly shows the continuing validity of the term. If there's some sort of concensus that liberals have abandoned the term, I'd like to see that, but I'm not aware of any such concensus at this point. And really, I think Gore and Biden's statements strongly suggest that such a concensus hasn't been reached.

As to the constitution in exile comment, that wasn't my doing, and I think it's a little odd. Honestly, though, I'd actually make the statement stronger and less apologetic. Really, I'd guess that the majority of liberal legal academics would acknowledge supporting the view of a living Constitution. Certainly, because it's a controversial phrase, they may avoid using it as such, but I don't think that's so much from embarassment, but simply to avoid politicizing their academic work.

I think there's no question that more people are obsessed with originalism recently than with the living constitution, and that this has rendered criticism of the living constitution more common and more strident. I don't think this should be taken as weakness in support for the idea of a living constitution, though, as Balkin argues in his Slate piece.

-Mackan79

[edit] Possible Bias

  • I have nominated this article to be checked for neutrality due to the fact that there has been so much disagreement as to its bias or lack thereof. Why not just settle it by asking other contributors and admins to check and correct it until it can be taken off the "bias" list? — James.S (talk • contribs • count)
The discussion is actually almost entirely (if not entirely) out of date. I constructed almost the whole article from scratch some months ago; since I did that, there haven't been any objections. If you look at the version from June 12, 2006, that's what the whole talk page is about. I'm happy to have any review, but the neutrality actually hasn't really been disputed at this point, unless you had a specific problem? Mackan79 05:23, 29 November 2006 (UTC)

[edit] Edits to leading paragraph

The leading two paragraphs are so full of qualifiers and worry-words that they seem impenetrable and inaccessible to the average reader. I edited for this. If more knowledgable Wikipedians want to add more detail, I suggest they do it in further paragraphs below this one, since the initial part of the article needs to be expanded anyway, rather than adding more "slightly" "somewhats" and other such qualifiers are the cost of basic educational readability.

P.S. My experience is in copy editing, not law. So, forgive me.--Primal Chaos 03:03, 3 December 2006 (UTC)

Thanks for the edits and the input. I agree that some simplification was appropriate. The basic problem is that this is somewhat of a vague theory to begin with, but at the same time a very contentious theory, with a million trap doors. This seems to require some hedging. For instance, if you simply said it's the theory under which the Constitution is "dynamic," people would get the impression that we're talking about a Constitution which can change into anything at any time, which isn't at all the theory (but is, of course, exactly how critics would like to paint it). So I've been trying to guard against that.
Anyway, that's where I'm coming from. I think we've improved it already, but I'll continue to negotiate on further changes :) Mackan79 05:02, 5 December 2006 (UTC)


[edit] Who gives the life?

I view the Constitution as changeable (or living) inasmuch as there is a process for amending it. Does this sentiment of legislative life (as opposed to judicial interpretation giving life) fall under the head of this article?

Red Baron 23:34, 28 March 2007 (UTC)
Nope, you're probably looking for originalism :) The living Constitution is about change that happens without amendment. One argument for the living Constitution, actually, is that amending the Constitution for every little societal change is simply impossible. For instance, under originalism, in order to have a contemporary meaning of the right to "due process," you'd have to constantly re-ratify that clause of the Constitution. The living Constitution, on the other hand, says the meaning should change as the societal conception changes over time. Hope that makes sense. Mackan79 01:53, 29 March 2007 (UTC)

[edit] Eminent Domain "Read Into" 5th Amendment?

I would like more clarification regarding the following line from "Arguments in Favor":

Moreover, in the case of Kelo v. New London, the conservatives Justices on the Supreme Court showed a willingness to read a "public use requirement" into the Fifth Amendment government power of eminent domain, despite its origins by implication, but also again to broad Conservative support.

The last part of the fifth amendment states: "nor shall private property be taken for public use, without just compensation." Are there popular interpretations for which this line DOESN'T have a public use requirement? (Something along the lines of property can be taken for any reason, and compensation is required only if it is taken for public use, perhaps?) brasten 15:37, 03 June 2008 (UTC)