On Wed, 21 Feb 2007 22:38:28 -0600 John Philip Adams wrote:




I personally like to stick to the Constitution as a reference point vs. the
ever-changing laws of the House and Senate, as those laws which are being
added or rewritten to suit current conventions. The Constitution is NOT a
'living' document. It is the bedrock of our legal system just as those laws
we brought with us from England. 


The laws brought from England were part of what was (and is) called the English constitution--a long cumulative legal tradition famously starting with the Magna Charta.  English law, on which U.S. law is based, was always recognized to be an evolving body, and, according to most experts, improving over the centuries as it was adjusted to fit changing circumstances and a growing sense of the nature and importance of individual liberty.

The Founders deliberately crafted a document that would embody both the best principles AND the process of English law.  The Constitution is more than a set of rules for all time--it embodies a set of principles and it lays out the groundwork for these principles to be applied.  One of the most important parts of this groundwork is clearly the establishment of a (bicameral) legislative body, the House and Senate, whose job it is to make laws.  Thus it is patently absurd to complain that the "bedrock" Constitution is in any way opposed to the "ever-changing laws of the House and Senate," since establishment and revision of laws is precisely what the Constitution requires of them.  

Again, the complaint about "activist judges" springs from a fundamental misunderstanding of the Constitution, which specifically created the Supreme Court as a practical means of keeping legislation in line with Constitutional principles.  A brief survey of the history of the Supreme Court will demonstrate that justices have always been activists, in the sense that they have always been involved in interpreting the Constitution and deliberating on the constitutionality of laws.  It is impossible that we should all agree with all the decisions that judges and justices have made, but the fact remains that this is precisely what the Constitution requires of them.  Dismissing them as "activist judges" is nothing more than complaining when the outcome of this fundamentally democratic process doesn't suit one's ideological preference.

Finally, the Constitution IS a living document.  The example I gave in a previous message--the expansion of the franchise from white property-owners to a more inclusive body--is the ultimate example.

Cheers -- Kevin Joel Berland

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