Gasp! You mean it’s a changing document?

Unlike the purely political Antonin Scalia, Supreme Court Justice Stephen Breyer has some common sense:

Breyer told hundreds of people during an event in downtown Little Rock that a judge’s job is to figure out how the Founding Fathers’ values apply to modern issues.

“George Washington didn’t really have a view about the Internet,” he said, drawing laughter from the crowd of about 650 people at the Statehouse Convention Center.

It’s sad to think that more people, including the purely political conservative “justices” on the Court, don’t realize this utterly basic fact.

24 Responses

  1. So let me get this straight – justices that agree with you are following a factual interpretation of the constitution, and those that don’t are motivated by politics.

    Here’s another explanation – both sides have a heavy dose of each motivation, and your bias and hubris are limiting how you see the issues.

    This is an entirely debatable issue – to what degree should the constitution be changed, and how timeless are the fundamental ideas of limitations on government powers? This is a thriving debate with constitutional scholars, not a cheap political stunt.

    Historian Thomas E. Woods Jr. argued “It was precisely Britain’s own ‘living, breathing’ constitution – and the oppressions it produced – that the Founding Fathers rebelled against.” which is a great argument on why changing the constitution must be very difficult.

    I agree that is should not be impossible – but the whole point of a constitution is essential to our republic – that unlike a pure democracy, the majority of the people can not vote to, say, establish an official religion. We need a firm constitution to protect America from the tyranny of the majority.

  2. Of course it is a changeable document. The strict constructionists are living in the past, up their own assholes.

  3. Cute try, Michael, but no. First, Justices which have this most obvious, most basic understanding of the facts of the constitution are correct. It isn’t that they agree with me, it’s that they agree with reality. I tend to do the same.

    Second, Britain’s unwritten constitution is hardly comparable to the U.S.’ s handy-dandy, fold-able constitution. Oh, plus that whole monarchy thing they had (and have, but no longer meaningfully). Yeah, I think that may have led to a bit of the oppression.

    Third, no one is talking about making fundamental changes to the constitution. Indeed, the whole point here is to be in line with the constitution – in context. All the references to “man”, while a couple of hundred years ago really meant people with penises, that is no longer the understanding: there is no rational distinction to be made between men and women that justifies any sort of broad inequality. While Scalia, in his anti-everything good politics, has argued that women, indeed, are not equal under the constitution, people who actually understand the point of the document recognize that it is meant to change – where relevant – with the times. It isn’t a holy text.

  4. I don’t know that that sort of change is what Other Michael was talking about, Michael (Hawkins).

    The fact that the constitution isn’t easily changeable is one of the most important foundations of America.

    I don’t think Justice Breyer is talking about ‘change’ in they way you hope either.

    One thing I do take issue with in that article is the assertion that the campaign funding case was wrongly decided. It’s a zero sum view of things, if this person can afford to buy commercials than this person over here loses something.

    That’s not the case at all and it would do more to restrict rights than it would do to expand them by deciding that you can only spend so much on you speech.

    Would you like to see your blog restricted because some people can’t afford to dedicate the time to write their own?

    Costs are not always measured in money. Perhaps the supreme court should have ruled the other way and said that each person can only spend one hour supporting a political candidate in addition to saying they can only contribute X dollars.

  5. I think you’re seeing this as too black and white. There is such a thing as a debatable issue, where intelligent, reasonable people can disagree, and constitutional law has many of those issue.

    Scalia has long taken the position that the constitution is silent on specific issues, such as abortion or torture (torture is not punishment per se, so the cruel and unusual restriction does not apply) That does not mean that abortion or torture can not be outlawed through legislation, or is automaticly outlawed. It is SILENT. I think you should read what he has to say on issues like gender discrimination instead of what another blogger wrote.

    I have no qualms with you considering yourself a scholar on biology or philosophy issues, but economics and now law are not areas where you have much expertise, and I don’t see how you justify galvanizing your opinions as metaphysical truth.

  6. Nate – You have it exactly backwards. It is (other) Michael who doesn’t know what sort of change I’m talking about. He has been talking about making actual changes to the constitution. I’m talking about interpreting the constitution in a way that is at least remotely relevant to modern America. Justice Breyers is making the same argument.

    Michael – I’m talking about interpreting the principles espoused in the constitution to be applied to modern day issues. I don’t know as there is a principle that can be extended to abortion, and I actually find the privacy argument to be flimsy, but what I’m talking about are things like civil rights and how we treat corporations.

    I think you should read what he has to say on issues like gender discrimination instead of what another blogger wrote.

    lulz. Cute. Maybe you should read what he has actually said. Because that’s what I was referencing.

    but economics and now law are not areas where you have much expertise

    I could say the same of you. But as for law, this is a basic idea behind the constitution. It is a living document which changes with reference to context and the times. This was the entire frickin’ idea behind the very specific wording (something I know you hate) the founding fathers chose.

  7. Can one of you change your name to Phil or something?

  8. I’ve been partial to “Sam” since my recent Cheers kick started.

  9. The other Michael can be Woody.

  10. How about Normy?

  11. I don’t think they served Bug Lager at Cheers.

  12. Nor should they have!

    I’ve flushed better liquids.

  13. I am glad no one is making that awful, doomed-for-failure “one of you is Mike and the other is Michael” plan. It has always failed.

    I knew exactly what Scalia remark you were referring to. It may interest you to re-read the start of the 14th ammendment – it is a ban on legislation from treating different segments of the population differently. No one is arguing the government should pass legislation that treats women differently.. You should also see the sentence before the cited Scalia quote says:

    “But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society.”

    He was stating that just because your view isn’t covered by the constitution, you shouldn’t let that stop you from passing legislation you think is just. I imagine you alteast agree with that point.

  14. Well put Normy.

  15. Here’s what I think you’re saying, M Hawkins, that we should interpret the constitution through modern eyes, so when the Founding Fathers wrote of citizens with land-owning white males in mind, we should read those words with all Americans in mind, including black women.

    I don’t disagree with that, but that does not require any rewording or rewriting. The nineteenth ammendment did require rewording. Compare it to the Fifteenth ammendment. There is a spectrum. While “we the people” may be fluid, its dangerous to interpret historical documents while ignoring historical context. What you are arguing for is to rewrite parts of the constitution by redefining the written words, instead of following the instructions and voting to change it.

    Ammendments exist for a reason, and I see nothing wrong with wanting to use them when the constitution fails to apply to a modern issue.

  16. I’m convinced you’re a skimmer when it comes to reading.

    I knew exactly what Scalia remark you were referring to.

    Strange then that you claimed I was just repeating what some anonymous blogger wrote.

    No one is arguing the government should pass legislation that treats women differently.

    Good thing I never said that then.

    No one is arguing the government should pass legislation that treats women differently.

    He was stating that just because your view isn’t covered by the constitution, you shouldn’t let that stop you from passing legislation you think is just.

    He was stating that the 14th Amendment was not specifically about gender, therefore it cannot be applied as such. He then tried to cover himself slightly by saying he isn’t against equal protection. In other words, his primary point was that the constitution and its amendments are to be understood only in the context of the relevant issues and motivations of the times in which they were written. He doesn’t understand the history of the court, especially since Marshall, nor does he understand how principles work.

    Here’s what I think you’re saying, M Hawkins, that we should interpret the constitution through modern eyes, so when the Founding Fathers wrote of citizens with land-owning white males in mind, we should read those words with all Americans in mind, including black women.

    And it only took four posts to figure that out. Even though I quoted Breyer talking about the Internet and how the constitution is applied to it even though the founding fathers had no concept of it.

    I don’t disagree with that, but that does not require any rewording or rewriting.

    Then you and Scalia are at odds.

    What you are arguing for is to rewrite parts of the constitution by redefining the written words…

    Not in the least. I just disagree that civil rights are only for men and that corporations are people.

  17. I enjoy your last line.

    Corporations are not people, they are legal persons. They do not enjoy all the freedoms that a real person does. Having legal personhood lets a company act for itself, that is, a group of people to act as one.

    A bookshelf can’t enter into a contract with you, but a corporation can, a person can. A bookshelf can’t own things, but a corporation can. So on and so forth.

    I assume you’re referring to what I was going on about in particular, that corporations have the right to free speech. Insane to think that a group of people acting as one legal person should have free speech.

    I ask again if your preference for restricting peoples use of their money in their right to free speech extends to people using their time to affect their free speech?

  18. This isn’t about who can afford what. This is about the fact that corporations are not people. This is true for all corporations, but especially true for those that are publicly trade. In effect, the political ambitions of a few individuals are given a voice twice – once through the actual people and once through the non-person corporation.

    No more than can For the Sake of Science and Michael Hawkins vote against LePage in 2014 than can a corporation be called a person.

  19. I ask again how that converts to your blog. Are you not given a voice twice? To be read 24/7 even when you are not able to give your thoughts voice yourself?

    No one gets more than one vote, but everyone has unlimited speech, since when is everyone entitled only to one voice?

    Does this extend to labor unions? What about groups like ACORN? The American Federation of Scientists?

  20. Everyone has to follow the same laws. By allowing people to have a say through corporations, not only are they often going against the wishes of investors, but they are effectively skirting the law.

    Labor unions and all the others are subject to the laws created in reference to those sort of organizations. That corporations are no longer subject to such laws was a political decision.

  21. Unions are no longer subject to any such thing, only as much as corporations are.

    In so far all the others they chose that route by being non-profit, they don’t have to be, they still have the right to speech, they have given it away for a financial benefit.

    (I’d also point out that non-profits are only barred from screwing with candidates too much, issues they have free reign)

    And lets be real, you aren’t concerned about the investors here, and they are also free to move their money around, and weigh in when share holders vote.

  22. To close off that point, I was saying there is a spectrum, and I don’t think you got Scalia’s point.

    As for corporations – they are not people, they are legal entities – and that is the entire point of incorporating. Saying corporations shouldn’t be legal entities is kind of like saying food shouldn’t be edible. What would the definition of a corporation be in your ideal world?

  23. That’s exactly what a ‘legal person’ is and that’s basically what it means.

    I think, as 5 of the 9 Justices do, that a group of people have a collective voice that they are free to use, as with inside your head, majority rules. If a majority of shareholders aren’t upset, than no one else has a right to be, it isn’t your money and it doesn’t infringe on your rights to do anything.

    I view it as an extension as the right to assemble, you don’t lose your right to speak because you have assembled.

  24. See, I got my Michael’s confused… still relevant, I was kind of thinking that it didn’t make sense and was too close to what I was already saying to really be a response to me but…

    Turns out it wasn’t so there.

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