The Constitution of the United States of America has been instrumental in making America the world leader in so many areas.

The better framing of the question, I think, is:

=> Constitutional Rights are Absolute
=> Constitutional Rights are Conditional

I would check the conditional box. As it is presently framed, I don't know how to answer.

I voted original intent, because we have to stick to the frame work or else the derived decisions get so far from what was written and intended that they are crazy. But I recognize all things, including law, evolve to work in the changing environment. So it's really both, but the question is more which way should we default to when uncertain.

If we default to original intent it means we need to be more active in legislature and in changing constitution to fit our needs.

One example of where original intent has been completely lost (and I give this example, because conservatives tend to ignore this, since it works against their arguments for original intent) is the 2nd Amendment right to bear arms, under a well regulated militia. First we completely forget the well regulated militia clause completely. And even when we don't, we do not correctly identify what that was.

Long before the National Guard there were State Militias. These were seen as the bulwark against Federal tyranny. Well regulated meant controlled by the State legislature, so that a Shays' Rebellion would not qualify. But even so the well regulated was hit and miss (mostly miss) from the get go, as everyone on the frontier required a gun to survive, and to defend themselves against the natives (a policy that also led to really poor relations with the native peoples -- but that is another story, irrelevant here). So there were always personal guns around, especially as you moved west.

But then the Civil War happened, in which the State militias of the south banded together and formed the Confederate armies. The civil war in effect was a referendum on the 2nd amendment, and it's result was a sound rejected of the "well regulated (State) militias". Today the National Guard reflects that, in that they are all under the federal command, but may be loaned to the local governor. We say that in the civil rights movement where it was the President who called up the National Guard to enforce civil rights, starting with desegregation in Arkansas.

The result is chaos with the meaning of 2nd Amendment. The right to bear arms has been divorced from the concept of a well regulated militia. And the Amendment has become a politicized law, and now falls under the same category of "positive rights" such as abortion, health care, and so on. The counter argument is that custom and usage --which is to say a living document-- has been what has extended the right to individuals not involved with a well regulated militia (i.e., one controlled by the State or Feds) to have guns. In fact this custom and usage goes all the way back to early frontier, the very day the Bill of Rights came into existence.

That custom and usage has become tradition and represents one of the strongest examples of the constitution as a living document. It is ironic that those against gun rights cite original intent, while those in favor cite the living document provision of custom, usage and tradition.

The framers could not envision every circumstance that would develop in the future, but that's also why they created the 3 branches of government. By the very nature that amendments can be passed it is a living document.

The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

Yes, to address your and bobdizole's point, the Constitution can be amended. It is a very difficult process and it was designed to be difficult.


But the context I meant related to legislative ideology. Should courts make decisions based on the Original Intent of the document or should they have discretion to bypass the legislative process based on their personal beliefs?

(08-22-2019 03:20 PM)umbluegray Wrote:  

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

Yes, to address your and bobdizole's point, the Constitution can be amended. It is a very difficult process and it was designed to be difficult.


But the context I meant related to legislative ideology. Should courts make decisions based on the Original Intent of the document or should they have discretion to bypass the legislative process based on their personal beliefs?

Pretty sure the framers were well aware that SCOTUS judges would never fully be able to keep their decisions separate from personal beliefs. But there's not a much better alternative really.

(08-22-2019 03:22 PM)Redwingtom Wrote:  

(08-22-2019 03:20 PM)umbluegray Wrote:  

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

Yes, to address your and bobdizole's point, the Constitution can be amended. It is a very difficult process and it was designed to be difficult.


But the context I meant related to legislative ideology. Should courts make decisions based on the Original Intent of the document or should they have discretion to bypass the legislative process based on their personal beliefs?

Pretty sure the framers were well aware that SCOTUS judges would never fully be able to keep their decisions separate from personal beliefs. But there's not a much better alternative really.

I disagree. And I can draw on personal experience.

I've served on 2 juries in my life. Jury members are instructed to base their decisions solely on the facts presented during the trial and to not base decisions on personal beliefs.

The law states A. Did the defendant violate A?

It does not matter whether or not I personally agree with the law.


So I believe jurists can most definitely make decisions as applicable to the law regardless of their personal opinions.


The point of the poll is really about Judicial Activism.

(08-22-2019 02:55 PM)Stugray2 Wrote:  I voted original intent, because we have to stick to the frame work or else the derived decisions get so far from what was written and intended that they are crazy. But I recognize all things, including law, evolve to work in the changing environment. So it's really both, but the question is more which way should we default to when uncertain.

If we default to original intent it means we need to be more active in legislature and in changing constitution to fit our needs.

One example of where original intent has been completely lost (and I give this example, because conservatives tend to ignore this, since it works in their favor) is the 2nd Amendment right to bear arms, under a well regulated militia. First we completely forget the well regulated militia clause completely. And even when we don't, we do not correctly identify what that was.

Long before the National Guard there were State Militias. These were seen as the bulwark against Federal tyranny. Well regulated meant controlled by the State legislature, so that a Shays' Rebellion would not qualify. But even so the well regulated was hit and miss (mostly miss) from the get go, as everyone on the frontier required a gun to survive, and to defend themselves against the natives (a policy that also led to really poor relations with the native peoples -- but that is another story, irrelevant here). So there were always personal guns around, especially as you moved west.

But then the Civil War happened, in which the State militias of the south banded together and formed the Confederate armies. The civil war in effect was a referendum on the 2nd amendment, and it's result was a sound rejected of the "well regulated (State) militias". Today the National Guard reflects that, in that they are all under the federal command, but may be loaned to the local governor. We say that in the civil rights movement where it was the President who called up the National Guard to enforce civil rights, starting with desegregation in Arkansas.

The result is chaos with the meaning of 2nd Amendment. The right to bear arms has been divorced from the concept of a well regulated militia. And the Amendment has become a politicized law, and now falls under the same category of "positive rights" such as abortion, health care, and so on. The counter argument is that custom and usage --which is to say a living document-- has been what has extended the right to individuals not involved with a well regulated militia (i.e., one controlled by the State or Feds) to have guns. In fact this custom and usage goes all the way back to early frontier, the very day the Bill of Rights came into existence.

That custom and usage has become tradition and represents one of the strongest examples of the constitution as a living document. It is ironic that those against gun rights cite original intent, while those in favor cite the living document provision of custom, usage and tradition.

There is absolutely no contemporary documentation to support this claim.

(08-22-2019 02:55 PM)Stugray2 Wrote:  I voted original intent, because we have to stick to the frame work or else the derived decisions get so far from what was written and intended that they are crazy. But I recognize all things, including law, evolve to work in the changing environment. So it's really both, but the question is more which way should we default to when uncertain.

If we default to original intent it means we need to be more active in legislature and in changing constitution to fit our needs.

One example of where original intent has been completely lost (and I give this example, because conservatives tend to ignore this, since it works in their favor) is the 2nd Amendment right to bear arms, under a well regulated militia. First we completely forget the well regulated militia clause completely. And even when we don't, we do not correctly identify what that was.

Long before the National Guard there were State Militias. These were seen as the bulwark against Federal tyranny. Well regulated meant controlled by the State legislature, so that a Shays' Rebellion would not qualify. But even so the well regulated was hit and miss (mostly miss) from the get go, as everyone on the frontier required a gun to survive, and to defend themselves against the natives (a policy that also led to really poor relations with the native peoples -- but that is another story, irrelevant here). So there were always personal guns around, especially as you moved west.

But then the Civil War happened, in which the State militias of the south banded together and formed the Confederate armies. The civil war in effect was a referendum on the 2nd amendment, and it's result was a sound rejected of the "well regulated (State) militias". Today the National Guard reflects that, in that they are all under the federal command, but may be loaned to the local governor. We say that in the civil rights movement where it was the President who called up the National Guard to enforce civil rights, starting with desegregation in Arkansas.

The result is chaos with the meaning of 2nd Amendment. The right to bear arms has been divorced from the concept of a well regulated militia. And the Amendment has become a politicized law, and now falls under the same category of "positive rights" such as abortion, health care, and so on. The counter argument is that custom and usage --which is to say a living document-- has been what has extended the right to individuals not involved with a well regulated militia (i.e., one controlled by the State or Feds) to have guns. In fact this custom and usage goes all the way back to early frontier, the very day the Bill of Rights came into existence.

That custom and usage has become tradition and represents one of the strongest examples of the constitution as a living document. It is ironic that those against gun rights cite original intent, while those in favor cite the living document provision of custom, usage and tradition.

Quote:A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I don't see anything in the text of the 2nd Amendment that says militias were state run.

Regardless, the wording of the amendment does not say militias must be regulated by legislation either federal or state. A football team, for example, can operate well-regulated.

What we do know is that the Founders themselves had just endured seven years of war in an effort to free themselves from a tyrannical government.

They refused to ratify the constitution as-is. They felt that additional clauses should be added with a very specific understanding.

They Bill of Rights was added for one reason only:

Quote:THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The sole intent of each of the 10 Amendments is to LIMIT THE GOVERNMENT and to stop the government from becoming abusive.


Reading the BOR and 2A from this context makes it clear the INTENT of the Founders was for government has no authority over the citizens and their weapons.

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

If liberals amended the constitution to accomplish their goals that would be one thing. Instead they get a judge to do it for them

(08-22-2019 05:38 PM)solohawks Wrote:  

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

If liberals amended the constitution to accomplish their goals that would be one thing. Instead they get a judge to do it for them

I don't believe the SC should be able to restrict rights expressly laid out in the Constitution, but what about extending rights not expressively laid out in the Constitution?

The modern example of the latter is Obergefell v. Hodges

(08-22-2019 06:49 PM)bobdizole Wrote:  

(08-22-2019 05:38 PM)solohawks Wrote:  

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

If liberals amended the constitution to accomplish their goals that would be one thing. Instead they get a judge to do it for them

I don't believe the SC should be able to restrict rights expressly laid out in the Constitution, but what about extending rights not expressively laid out in the Constitution?

All rights are spelled out in the Constitution.

The rights that the Constitution reinforces are in Amendments 1-9.

Those it does not directly reference are covered by this:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Quote:The modern example of the latter is Obergefell v. Hodges

Judicial activism and federal overreach.

(08-22-2019 06:58 PM)Kaplony Wrote:  

(08-22-2019 06:49 PM)bobdizole Wrote:  

(08-22-2019 05:38 PM)solohawks Wrote:  

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

If liberals amended the constitution to accomplish their goals that would be one thing. Instead they get a judge to do it for them

I don't believe the SC should be able to restrict rights expressly laid out in the Constitution, but what about extending rights not expressively laid out in the Constitution?

All rights are spelled out in the Constitution.

The rights that the Constitution reinforces are in Amendments 1-9.

Those it does not directly reference are covered by this:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Quote:The modern example of the latter is Obergefell v. Hodges

Judicial activism and federal overreach.

Amendement X has been neutered due to judicial activism. Prohibition was passed as an amendment because Congress didnt believe it had the power to take such action. These days it probably could be done via executive order

(08-22-2019 06:58 PM)Kaplony Wrote:  

(08-22-2019 06:49 PM)bobdizole Wrote:  

(08-22-2019 05:38 PM)solohawks Wrote:  

(08-22-2019 03:07 PM)Redwingtom Wrote:  The Constitution itself specifically provides for amendments to it in Article V. So, in practicality, how can it not be a living document?

If liberals amended the constitution to accomplish their goals that would be one thing. Instead they get a judge to do it for them

I don't believe the SC should be able to restrict rights expressly laid out in the Constitution, but what about extending rights not expressively laid out in the Constitution?

All rights are spelled out in the Constitution.

The rights that the Constitution reinforces are in Amendments 1-9.

Those it does not directly reference are covered by this:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Quote:The modern example of the latter is Obergefell v. Hodges

Judicial activism and federal overreach.

Here's someone who gets it and knows exactly what's going on!