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View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

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  •  Read some Brennan (none)
    Read Brennan's essay on the topic of a living constitution - The Constitution of the United States: Contemporary Ratification.  It's one of the best defenses of the idea that I've read out there.

    The old interpretations and meanings of the Constitution were not meant to control our actions and dictate to us what the Constitution means, according to Brennan, but instead are there to guide us when we transform the document to our own needs.  We must continuously ratify the Constitution, to ensure that we as a generation are still bound by it.

    It's a workable version of the Jeffersonian ideal.  Jefferson himself thought that all constitutions should have a 19-year expiration date, to ensure that each generation was allowed to reconstruct the government and reratify the government for their needs/goals.

    •  Ah (none)
      The French model. :-)

      Liberal Thinking

      Think, liberally.

      by Liberal Thinking on Sat Jul 23, 2005 at 07:08:48 PM PDT

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    •  What if our own means.. (none)
      become tyrannical?  Isn't an Amendment banning marriage for some people sort of antithetical to the Constitution itself?  Were our Founders so dumb as to create a document that really was meant to subvert itself?  Is there NO room for some fixed principles in the document, or is the whole thing really only supposed to be relevant to the times?  And if it is relevant to the times only, how can we say with a straight face that the Founders secured anything for us?  Isn't the definition of secure some form of being fixed?

      "The sharpest criticism often goes hand in hand with the deepest idealism and love of country." -RFK

      by apmiller on Sat Jul 23, 2005 at 07:22:47 PM PDT

      [ Parent ]

      •  Compromise and danger (none)
        That's why we can be thankful that over the years we've settled somewhere between the Jeffersonian extreme of a constitution that expires every generation and the Madisonian extreme of an immutable constitution only to be changed through a rigid amendment process.

        Our Constitution has the same ideals that it once had, but applied and adjusted to new times.  To change the basic tenets of the Constitution would require much more radical action.  

        As far as whether the founders would create a document ready to subvert itself, I think that's exactly what they intended.  Article V is there for a reason; if future generations want to pass amendments that are wholly against American ideals, they are free to do so.  The founders can only give us guidance, they can't handicap us such that we'll never be able to make any mistakes or make any advances.

        Jefferson said it best - The Earth belongs to the living - for good or for ill, we have control during our generation, and the past can only help us on our path, no more, no less.

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