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Obama: Constitution Is Living Document

This might be a good time to remember what Mr. Obama thinks about the Constitution.

From his second autobiography, The Audacity Of Hope, pp 52 –54:

So if we all believe in individual liberty and we all believe in these rules of democracy, what is the modern argument between conservatives and liberals really about? If we’re honest with ourselves, we’ll admit that much of the time we are arguing about results—the actual decisions that the courts and the legislature make about the profound and difficult issues that help shape our lives. Should we let teachers lead our children in prayer and leave open the possibility that the minority faiths of some children are diminished? Or do we forbid such prayer and force parents of faith to hand over their children to a secular world eight hours a day? Is a university being fair by taking the history of racial discrimination and exclusion into account when filling a limited number of slots in its medical school? Or does fairness demand that universities treat every applicant in a color-blind fashion? More often than not, if a particular procedural rule—the right to filibuster, say, or the Supreme Court’s approach to constitutional interpretation—helps us win the argument and yields the outcome we want, then for that moment at least we think it’s a pretty good rule. If it doesn’t help us win, then we tend not to like it so much.

In that sense, my colleague in the Illinois legislature was right when he said that today’s constitutional arguments can’t be separated from politics. But there’s more than just outcomes at stake in our current debates about the Constitution and the proper role of the courts. We’re also arguing about how to argue—the means, in a big, crowded, noisy democracy, of settling our disputes peacefully. We want to get our way, but most of us also recognize the need for consistency, predictability, and coherence. We want the rules governing our democracy to be fair.

And so, when we get in a tussle about abortion or flag burning, we appeal to a higher authority—the Founding Fathers and the Constitution’s ratifiers—to give us more direction. Some, like Justice Scalia, conclude that the original understanding must be followed and that if we strictly obey this rule, then democracy is respected.

Others, like Justice Breyer, don’t dispute that the original meaning of constitutional provisions matters. But they insist that sometimes the original understanding can take you only so far—that on the truly hard cases, the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. According to this view, the Founding Fathers and original ratifiers have told us how to think but are no longer around to tell us what to think. We are on our own, and have only our own reason and our judgment to rely on.

Who’s right? I’m not unsympathetic to Justice Scalia’s position; after all, in many cases the language of the Constitution is perfectly clear and can be strictly applied. We don’t have to interpret how often elections are held, for example, or how old a president must be, and whenever possible judges should hew as closely as possible to the clear meaning of the text.

Moreover, I understand the strict constructionists’ reverence for the Founders; indeed, I’ve often wondered whether the Founders themselves recognized at the time the scope of their accomplishment. They didn’t simply design the Constitution in the wake of revolution; they wrote the Federalist Papers to support it, shepherded the document through ratification, and amended it with the Bill of Rights—all in the span of a few short years. As we read these documents, they seem so incredibly right that it’s easy to believe they are the result of natural law if not divine inspiration. So I appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering; the fundamentalist faith that if the original understanding of the Constitution is followed without question or deviation, and if we remain true to the rules that the Founders set forth, as they intended, then we will be rewarded and all good will flow.

Ultimately, though, I have to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever-changing world.

How could it be otherwise? The constitutional text provides us with the general principle that we aren’t subject to unreasonable searches by the government. It can’t tell us the Founders’ specific views on the reasonableness of an NSA computer data-mining operation. The constitutional text tells us that freedom of speech must be protected, but it doesn’t tell us what such freedom means in the context of the Internet.

Moreover, while much of the Constitution’s language is clear and can be strictly applied, our understanding of many of its most important provisions—like the due process clause and the equal protection clause—has evolved greatly over time. The original understanding of the Fourteenth Amendment, for example, would certainly allow sex discrimination and might even allow racial segregation—an understanding of equality to which few of us would want to return.

Finally, anyone looking to resolve our modern constitutional dispute through strict construction has one more problem: The Founders and ratifiers themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions but about first principles, not just between peripheral figures but within the Revolution’s very core. They argued about how much power the national government should have—to regulate the economy, to supersede state laws, to form a standing army, or to assume debt. They argued about the president’s role in establishing treaties with foreign powers, and about the Supreme Court’s role in determining the law. They argued about the meaning of such basic rights as freedom of speech and freedom of assembly, and on several occasions, when the fragile state seemed threatened, they were not averse to ignoring those rights altogether. Given what we know of this scrum, with all its shifting alliances and occasionally underhanded tactics, it is unrealistic to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers.

So naturally he would not have a problem with judges making policy – and law – from the bench.

This article was posted by Steve Gilbert on Tuesday, May 26th, 2009. Comments are currently closed.

24 Responses to “Obama: Constitution Is Living Document”

  1. proreason

    “I appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering”

    huh…..this is why I call him The Moron.

    That isn’t even close to what Scalia says or means.

    Any child knows that mechanisms exist that allow “our democracy” (another stupid mistake. It’s a republic.) to change.
    a. Congress establishes laws that change the government all the time (after all, they have to prove their worth, right? no matter the consequences.)
    b. The Consitution itself has been amended many times.

    So if The Moron thinks the Constitution itself is subject to the interpretation of whatever ninny comes along, what good is it at all?

    But of course, we know the answer……it’s what allowed him to get elected king. Other than that, he intends to do whatever he thinks he can get away with.

    And to use the Constitution as toilet paper.

    • jobeth

      “that mechanisms exist that allow “our democracy” (another stupid mistake. It’s a republic.) ”

      That’s what we get from a moron who thinks there are 57 states. How in the name of all thats good did this man get to be president?

      Ahhh yes….the nuts at ACORN.

      I keep hearing talk about constiutional conventions….by the right. I understand some of the things the right wants to do, but it’s too dangerous right now to risk it.

      What scares me is that the left will take over the process and mess with the original text. Ammendments are one thing but the body of the document needs to stay the same…And it won’t if those that think its a “living document” to be rewritten each time a new thought fad comes into play gets control of it.

      We can say goodby to every thing we have built over the last 250+ years.

    • Petronius

      Proreason: “That isn’t even close to what Scalia says or means.”

      Knocking over strawmen is one of Nerobama’s favorite diversions. He’s been doing this for so many years I don’t think he knows the difference anymore.

    • proreason

      jobeth: “We can say goodby to every thing we have built over the last 250+ years.”

      Look what change has reaped just in the last year:

      – loans to deadbeats reduced the wealth of the country about $10 trillion, plus about 5 million jobs
      – the “fix” to that “crisis” has added more debt than we incurred in all of prior history

      And now they want to “fix” health care and “global warming”.

      The irresponsibility is so mind-blowing there aren’t words to describe it.

      I’m with you Jobeth, I’m the kind of conservative who says to just leave things alone. There’s a reason why our country used to be the most successful one in history, and it isn’t The Moron’s latest brain fart.

    • canary

      I sometimes half-joke the fall of the Roman empire. If so, we’ll rebuild, as long as we have guns and fishing poles.

  2. Petronius

    Clearly Harvard Law School has a lot to answer for.

    • Confucius

      Harvard Law has produced many a stain: Michelle Obama, Ralph Nader, Michael Dukakis, David Souter, Ruth Ginsberg, Stephen Breyer, Janet Reno, Susan Estrich and Alan Dershowitz.

      What’s shocking is how Susan Estrich got past admissions.

    • Petronius

      Confucius––”Harvard Law has produced many a stain….”

      Nerobama, Susan Estrich, et al., must have soon forgotten the legal maxim taught by that brilliant legal scholar and Harvard law professor Holland Taylor: “The law is reason, free from passion” (Aristotle). Yep, reason, not empathy, is what the law is about. Dura lex, sed lex.

    • catie

      I guess Harvard has been resting on their laurels for the last 40ish years. I believe that other wordsmith, Caroline Kennedy went there as well.
      I have some bad news for these folks-they need to re-read the Federalist Papers and their history. The Constitution isn’t something that should be interpreted Willy Nilly but these “learned scholars” would say I was incorrect.

  3. Confucius

    I bet Obama sees the Bible similarly–i.e. “not a static but rather a living document, and must be read in the context of an ever-changing world.”

    • Best way I have EVER heard the role of the Supreme Court defined by none other than Walter Williams :
      “an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only namely; he is a referee. There is nothing complicated about this. A referee’s job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? ”

      The rest is here: http://jewishworldreview.com/c.....52009.php3

      And for heavens sake, why would we require a super majority, and validation by the states to “amend” if a mere majority of “unanswerable” Justices can do so on a whim?

    • Confucius

      Hello Jason Gillman.

      Your last point is well said.

    • canary

      Confuscious. He has only written and spoken out against Christianity. “Non-denominational Christians and Catholics” are to blame for most problems. His propaganda and deception in when ever he mentions Christianity, is to quote Old Testiment passages written before Christianity, accusing Christianity of condoning stoning an adultress, when neither God, nor Jesus ever made this law. Christ told the people to stop as all are sinners. Steven who went to spread the word was stoned by one city, because he spoke of Jesus. Jesus and Christ are not in his vocabulary. I think the closest he came to ever coming close to say Jesus or Christ was during the televised debate with McCain on religion, when Obombie was put on the spot. He believes in ghosts, taught from an early age of ghosts, voo doo, witchcraft, spirits, believes in the probability of African night runners that come out at night, do his experiences in Kenya. And his more recent, admittance of no belief as to what happens after someone dies. His grandparents did not practice religion, his mother, life long friends, taught him all religions, primarily muslim, budda, hindu.
      It’s worries me, since muslims do not believe Jesus was even crucified, and the Quran specifically blames “Jesus, Mary, and David” for the evil world who does not practice one God, the only God. I would say Obama hasn’t formed a true belief, and but does attack Christianity when he can, and his church of choice was chosen for it’s white and jew hate mongering.

      Latest news has said on his not attending church is that he takes time to meditate. Any book he touches probably is the one of the 3 he’s under contract to write, or shows him on the front cover. Probably working on his memoirs.

      He also, wrotes something to the effect the possibility of the Freedom of Religion amendment was fought for by Thomas Jefferson, who may have not been a Christian, but believed in God. Obama is a man of many faces and masks.

  4. IdahoGal

    “Others, like Justice Breyer, don’t dispute that the original meaning of constitutional provisions matters. But they insist that sometimes the original understanding can take you only so far—that on the truly hard cases, the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account.”

    Which is why the Founders, in their great wisdom, gave us the amendment! But that would involve the will of the people, wouldn’t it? Defeats the purpose of the Statist!

  5. TwilightZoned

    O and his ilk who believe the Constitution is…”a living document, and must be read in the context of an ever-changing world” are about to put this country on vary dangerous ground by adhering to the thought of the day philosophy. Add in the “empathy” factor and the result will be a complete break down of society and utter chaos followed by anarchy.

    The rapid deterioration rate of this country, on every level, transacted by this administration is nothing short of amazing. Are we witnessing the fall of another Roman Empire?

    • proreason

      TZ: “Are we witnessing the fall of another Roman Empire?”

      Interesting question.

      The pace of change in today’s world may be 10 times what it was in the ancient world, at least for technology. It’s probably not unreasonable to say that there have been as many innovations in the last 300 years as there were in the prior 3,000.

      Does politics move as quickly? Maybe so.

      It took the Roman Empire about 400 to 500 years to go from its height to its demise.

      When was the height of the US’s prestige and power? I would say the 50’s, because during that period there were no challengers since the world had nearly been destroyed. Since then, we have seen a steady and relentless attack on the US, much of it from within (and in my opinion, started from without).

      If the pace of political change is equivalent to the pace of techological change, one could say that the end of the US as the greatest nation ever may well be near.

      And the barbarians have certainly siezed power in Washington.

      With the full intent of destroying the country.

  6. Enthalpy

    Mr. Obama said,” the Founding Fathers and original ratifiers have told us how to think but are no longer around to tell us what to think. We are on our own, and have only our own reason and our judgment to rely on.” Yes, and here are just some of people who we must rely on: Sen. Mark Warner, Sen. Barbara Boxer, Sen. Chris Dodd, Sen. Dick Durbin, Rep. Barbara Lee, Rep. Emanuel Cleaver, Sen. Rowland Burris, Rep. Elijah Cummings, Rep. John Conyers, Sen. Edward Kennedy, Rep. Keith Ellison, Rep. Chaka Fattah, Rep. Alcee Hastings, Rep. Jesse Jackson Jr., Rep. Sheila Jackson Lee,Sen. Russell Feingold, Sen. Dianne Feinstein, Sen. Tom Harkin, Sen. John Kerry, Sen. Patrick Leahy, Sen. Carl Levin, Sen. John McCain, Sen Harry Reid, Del. Eleanor Holmes Norton, Rep. Charles Rangel, Rep. Laura Richardson, Rep. Bobby Rush, Rep. Maxine Waters, Rep. Diane Watson, Rep. Barney Frank, Sen. Bernard Sanders, Sen. Charles Schumer, Sen. Arlen Specter, Sen. Debbie Stabenow, and their minions. These are just a few of the elected representatives. There are countless others who would be happy to have us use their judgment. We can’t let them!

  7. 12 Gauge Rage

    If our country has to rely on it’s own reason based upon the mindset of Obama and his legions then our country is screwed. These lifelong liberal politicians are dug in like an Alabama tick, into the fabric of our society and just like a tick, they’re draining the life’s blood out of us. In 732 A.D. Charles Martel of the Franks defeated and bloodied the Islamic hordes from over running France. I feel as if there is someone out there ready to take the fight to the liberal horde and drive them out. But I don’t know if this will happen in my lifetime.

  8. Rusty Shackleford

    “According to this view, the Founding Fathers and original ratifiers have told us how to think but are no longer around to tell us what to think. ”

    This is the basic flaw in his premise.

    The founding fathers were not about telling people what or how to think. They were, instead a collective group of prominent citizens of the crown colonies, selected by the public to represent their THOUGHTS and DESIRES. The groups felt that by having these people represent them, basically, noblemen in the eyes of the crown, land owners and men of means, as the colloquial line of thinking was back then, then the masses would have a stronger voice.

    These men turncoats to the crown itself, would have “hanged in publik” by king George’s representatives, the collective law of the land.

    Obama missed the mark with this statement and thus, his fundamental lack of understanding of how democracy was founded here, how it matriculated, how it spread. It wasn’t these founding fathers getting people all riled up. It was these people getting the founding fathers all riled up and stepping into action.

    There was no ACORN for them. No mass media (owned by the crown, as it were) to speak their treason to king George. No fawning group of malcontents who wanted to destroy the crown. They simply wanted to govern themselves.

    Blammo is such a consummate revolutionary War retard that it’s beyond my comprehension. It shows with a very bright light how he was taught about our split from Britain. His ignorance of the great experiment and how the WORLD watched in awe as a rag-tag army of poorly trained and often discouraged people fought and died to be free of tyranny.

    –And defied the greatest power on Earth–

    But not for the sake of “redistributing the wealth. It was for the sake of not being taxed illegally, not having a voice in government and being bled dry financially by the crown.

    Along with that came the desire for freedom. Real, true freedom to do as one pleases so long as it hurt no one else.

    He just doesn’t get it. And it’s things like this that make me want to kick him off his high horse into the mud and then let my own horse stomp the crap out of him. He is filth. He is the epitome of arrogance in ignorance. He’s the kind of idiot that would tell Einstein that “sure you can go faster than light….you dummy..I saw them do it on TV”.

    His lack of understanding is perhaps what causes my tolerance level to go “TILT” and I short circuit the way I would when someone says “irregardless” or “supposably” or “disorientated”.

    Then, it goes from the sublime to the absolute comical because he BELIEVES his own crap (or appears to) with such conviction, such certainty. The King’s New Clothes.

    And, if this is the densely-packed crap-for-brains we have at the helm, there is now no mystery as to what kind of waters we shall sail. Do liberal historians read this crap and actually also believe that our founding fathers, and the documents they authored were to tell the masses “how to think”?

    My god….it’s a dead give away on how he understands this nation. What a fool.

    • Petronius

      Rusty: “The founding fathers were not about telling people what or how to think.”

      But fortunately Nerobama will soon have Justice Sonia Sotomayor to help all of us adjust our thinking in the not too distant future. And I’m sure that George Washington, Ben Franklin, John Marshall, James Madison, Alexander Hamilton, John Jay, and the rest of those dead white males who wrote the Constitution could have learned a lot from this proud and wise Latina woman with her richness of experience. Adjutorium nostrum Domine.

  9. canary

    Wonder what he’s getting at comparing freedom of speech before the internet came? It would be nice to know his “education and grades”, especially when it took so many to write this wishy washie whatie stuff.

    • heykev

      It’s still a mystery why his college transcripts and thesis have NEVER been published.

      If the MSM won’t do their job, it’s a shame that no conservative new organization can get a hold of this information.

      If the National Enquior of all places has to break stories on John Edwards, then is there really no one that will diaviete from the puff pieces of BHO, his lovely bride and oh so special new doggie.

    • proreason

      “It’s still a mystery why his college transcripts and thesis have NEVER been published”

      Well let me solve that for you heykev…….he’s an idiot and his grades and thesis prove it.

      Do you think for even a nano-second that if they proved otherwise, we wouldn’t have our noses rubbed in their glory 48×7.

      To say it is to laugh.

    • canary

      heykev/heh heh. I first saw the John Edwards sega in the National Enquirer. heh heh. First heard of Obama’s friends Bill Ayers, Rezko, etc. way before that came out too. When he took of his flag pen, I knew something wrong and started looking for what I could, and saw a headline on Enquirer about his bad friends. heh heh.
      OH, and Kev. Is that your doggie.


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