The Constitutiongreenspun.com : LUSENET : A.M.E. Today Discussion : One Thread
Recently, due to circumstance, the constitution has come to my attention. My question is very "wide range" so here goes. Is it me or is our constitution a living document? The ability to better an original mandate makes it a "living document" in my opinion. I am very new to this and studying things like the origins of the want ofliberty (which by the way are from the Bible) are mind blowing! So am I way off base in thinking that the constitution is a "living document", and do you think that; besides the want of power, the framers based the constitution on the Bible?
-- Anonymous, November 07, 2003
You pose an interesting question. My formal training is not in law but I have read my share of legal treasties, worked with lawyers for over 20 years and successfully endured the tortuous LSAT in a prior life :-) So, for what it's worth, here goes my non-ABA trained response.
There is a tendency for some to view the Constitution as a "living document". Former Harvard Law Professor Derrick Bell and a group of legal scholars headed by law school professors at Harvard University (Duncan Kennedy & Lani Guinier)and Columbia University (Patricia Williams & Kimberle` Crenshaw) developed an alternative legal paradigm called Critical Race Theory about 10-15 years ago. The purpose of this new legal model was designed to show that intelligent discussion about race in AMerica could not take place if the Constitution was viewed as a static and dead document. A "living document" is code language for allowing the fundamental document which defines our legal existence and legitimacy to be flexible. The call for flexibility is made because some topics of important legal consequence were not addressed when the Constitution was initially developed. It is normally used as a political argument to debunk the idea of "original intent". Judges who adopt the doctrine of original intent base their rulings on what the Constitution actually says at that particualr point in history without contemporary interpretations. Supreme Court Justices, Scalia, Thomas & Rhenquist are villified by their critics for espousing this particular jurisprudence view. For example, a woman's right to have an abortion is grounded in the legal belief that the Constitution allows for a "right to privacy" even though there is no mention about abortion in the US Constitution. However, anyone who has taken the time to read the Constitution will discover that there is NO such "right to privacy" and all support for abortion rights are unenumerated (i.e. implied). The infrequency of Constitutional amendments since its formal adoption in 1789 signals that elected officials do not desire to have a plethora of changes to reflect the idea of the Constitution as a "living document". The reluctance to amend the Constitution is consistent with the orthodx Christian belief that the Bible should be interpreted literally and not requiring any change or revision. The framers allowed for an amendment process but the hurdle is very high in order to have a successful amendment. Hope this helps. QED
-- Anonymous, November 08, 2003
Thank you my learned friend. The document is full of compromises; referring to the XIII Amendment. Fascination has settled in so I am listening close to what my facilitators are saying during lectures. Thanks for the insight regarding amendments. Felicia
-- Anonymous, November 10, 2003
Thank you Brother QED. I just learned something.
-- Anonymous, November 10, 2003