I watched Justice Scalia and while I respect him I was not at all charmed by him. He may be a decent man but personally, I think his "dead document" description of the Constitution is cute but dangerous.

The framers of the Constitution could not possibly antipate the world today. They did an excellent job of writing as broadly as possible but the Constitution still must be interpreted in light of today's society.

No, I'm not at all well versed in what Jefferson or Madison wrote in their private papers about what exactly constituted privacy when they wrote the Constitution. Does it matter? We don't live in 1787, we live in 2008.

Scalia's "originalism" doesn't seem to take into account the changes that have moved the government far from it's original definitions. For instance, what exactly is a militia today? What we call the Guard and the Active Services are no longer what were understood in 1787. How can one apply originalism to a concept that no longer represents what the Constitutional authors understood it to be?

That the other justices still count him as a good friend, even after his insults, speaks to his character. But Adams and Jefferson were good friends too and never embraced each other's politics.

did not know what the future held. But they did provide a method for updating the document, it's called the amendment process. What you seem to be endorsing is consitutional fiatism, it means whatever we want it to mean today, otherwise known as the living document consitution. That is a very dangerous path to trek as you are in essense leaving the door open to broad interputation and hoping the justicies see it your way.......

You seem endorse amending the Constitution constantly. I doubt that would happen and therefore we would be stuck in the past.

No where in the Constitution nor in any of the founders writings does it say that the only way to deal with new issues is by amendment. Precedence is important in the law. Were there never interpretations of the Constitutional rights and amendments by early courts?

I am not endorsing anything but simply asked some questions.

all the laws in deems appropriate, and does, it is simply a queation does the law pass consitutional muster. And yes if we want to apply a law that is in conflict with the consitutiona then we must change it, to do otherwise renders that documnet moot, no?

That is the real problem witht he living constitution doctrine, to ignore or redefine the constitution renders in worthless.

As to rights, the constitution grants no rights, it simply protects a choosen few.......

And yes if we want to apply a law that is in conflict with the consitutiona then we must change it,

Here's the crux of the matter. Justices who believe in a living Constitution don't see applying laws as a "conflict" with the Constitution.

The founders MEANT something. They could not anticipate automatic rifles. So when they said every citizen has the right to own a gun, what did they MEAN. That is not a conflict with the Constitution.

When they said people have the right to privacy in their persons what did they MEAN? They couldn't anticipate the kind of surveillance we have today so how can we apply what they MEANT?

That's what the Justices are for. These interpretations are not conflicts and they don't require changes in the Constitution.

Amending the constitution is not easy nor should it be, otherwise every special interest in the country would have their own special amendment which would be in conflict with the other 4,897 special amendments for all the other special interest groups.

Ronald Reagan simplified the tax code down to one short volumn. The tax code is now over 10,000 pages and multiple volumes long, all in the service of special interests groups. Do you really want to give these same #*&^!!!s a shot at disfiguring the Constitution.

Laws and evolving social standards are the jurisdiction of the legislature.

Reagan's tax code was many thousands of pages. Don't pretend otherwise.

So please explain to me what the word "cruel" means.

Actually the US Constitution protects ALL rights. What it does is delegate a LIMITED set of powers to The Government. All other rights remain with individual persons or their local and state governments (as long as those stay within the bounds of the Incorporation Clause).

The problem with "originalism" is that there is no such thing. How do you take Jefferson's viewpoint on individual liberties and women (he believed women were not capable of acting independently) and mix that in with women's suffrage and the Equal Protection clause and come up with anything resembling a co-herent view point (and this presumes that you can actually think LIKE Jefferson)?

The answer is that you cannot. Which means that inherently you, me, Scalia, Roberts, Thomas, Ginsburg etc. all ALL use our contemporary understanding of what Equal means, what we perceive women as being capable of, and then inform that by what we perceive to be the CORE ideas that Jefferson brought to bear.

Note, BTW, if you are looking at "originalism" is it Adam's view of individual rights (Alien and Sedition acts) or Jefferson's that demonstrates "Original intent"? Is it Hamilton's or Madison's view of the power of the Foederal Government that is "original intent"? Is it Jackson's or Washington's view of the role of "Indians" that is "original intent"?

Again, there is no inherent answer that is not driven by our contemporary understanding of history and other relevant facts.

that is the starting point for all the thinkers of the enlightenment. When dealing with the rights of the people. You will notice that the verbage of BOR is gender neutural. And if you want to address voting rights the constitution was silent on the matter, it was the states that limited the rigths of women ets to vote, not the constitution.

Better put is that the constitution is a contract with the states that restricts the federal governement to specific duties and tasks. That is the essence of origianlism, the blueprint for understand it is the Federalist Papers written by the authors of the constitution, Madison, Jay and Hamiliton. That is where your contemporary understanding comes from.

I am unsure why you bring Jefferson, Adams and Washington into the mix as their contirbutins were minimal in the construction of the new government.

While the historic basis for the "natural rights" is interesting, it doesn't really matter because it isn't the text of the Constitution.

You are correct that it was states that limited that right, but you are wrong that Jefferson, Adams and Washington had little to do with the construction of the new government. Adams presided over the BoR debate as Washington's VP, and was the first ELECTED POTUS setting in motion one side of the view of how the separated powers worked, and Jefferson who had informed much of the debate on natural rights ended up his fierce opponent.

The fact that Founding Fathers - whether they directly were involved with the writing of the Constitution or merely the DoI or were the earliest implementors of the Constitution - were so diverse in their opinions of what the text meant, means that to assume a singular "original intent" is simply specious.

But absent a singular "original intent" the whole house of "original intent" cards falls apart. At best you can look for consistency of ideas expressed by the varying factions and use that to inform a CONTEMPORARY interpretation.

Nothing else is truly available.

The framers of the Constitution were the best and the brightest of their day. They took great pains to consider as many possibilities as possible including the ability to expand the document if necessary. While many things have changed as our society as grown and developed, the core values remain the same and should stay that way. Improvements can be made and have, but the document and ideas behind remain virtually the same as they did in 1787.

“I'm not at all well versed in what Jefferson or Madison wrote in their private papers about what exactly constituted privacy when they wrote the Constitution. Does it matter? We don't live in 1787, we live in 2008.”

Actually it matters a great deal. If you want to value a historical document full of ideas that you say you believe in then you must know what the authors of that document thought. Without an understanding of the past you have no hope for a future. You have nothing to base your opinions on and end up talking out of your ass.

“Scalia's "originalism" doesn't seem to take into account the changes that have moved the government far from it's original definitions. For instance, what exactly is a militia today? What we call the Guard and the Active Services are no longer what were understood in 1787. How can one apply originalism to a concept that no longer represents what the Constitutional authors understood it to be?”

While the definitions of some words have changed over time, most of them have remained the same. The founding fathers took great pains to choose words that they were sure would never lose their meaning and they did a very good job.

A militia today is virtually the same thing it was in 1787, which is a body of citizens that have organized into a paramilitary group and are used in emergencies that are considered a threat to government or public safety and requires an armed response. This is what it meant in 1787 and that is what it means in 2008.

The Guard and the Active Services have expanded and evolved over time with technology and as the needs of their services changed, but they are virtually the same as well.

If the meaning hasn’t changed enough to lose its perspective or accuracy then there is no reason to stop using it.

Cassandra

“Here's the crux of the matter. Justices who believe in a living Constitution don't see applying laws as a "conflict" with the Constitution. “

If they pass a law that the people would not overwhelmingly support then it is a bad thing. Before Roe V. Wade was passed a very small minority agreed with it, but once they made it law with virtually no way to change it other than a new ruling by the people that passed it in the first place it became the norm. It became a permission slip. If you have sex and decide that you don’t want to take responsibility for your actions guess what? You can now murder your child and avoid that responsibility. It became a very effective permission slip and now that we’ve had 25 years of legal abortions you have whole generations that have accepted the lie spread by the liberals. It’s just another step in the downward spiral of society.

“The founders MEANT something. They could not anticipate automatic rifles. So when they said every citizen has the right to own a gun, what did they MEAN? That is not a conflict with the Constitution.”

You’re not giving these men nearly enough credit. Sure automatic rifles would amaze them, but they were well aware that scientific discovery leads to new ideas and better ways of doing the old ones. In the end the idea doesn’t change. We should still have the right to bear arms. If you wish to limit what type of arms then that’s fine.

“When they said people have the right to privacy in their persons what did they MEAN? They couldn't anticipate the kind of surveillance we have today so how can we apply what they MEANT?”

The meaning hasn’t changed and technology doesn’t lessen its effectiveness. You may not like what Bush has done concerning surveillance, but that doesn’t mean that it’s illegal or stretching the meaning of the Constitution. Only the guilty are worried about getting caught. It was true then and it is true now.

The Supreme Court justices are important, but they need to make sure that the laws they pass complement the Constitution rather than circumvent or dilute it.

Cassandra

...being a long winded one is unforgivable.

You've made my point well, Degsme. How does one define cruel? I gather Scalia would try to define it as Jefferson might have defined it. Therefore, hanging, firing squad, public humiliation, etc are not cruel. In that case we are really fortunate drawing and quartering wasn't the norm in early America or we'd still be doing that.

Scalia is one who said that torture isn't illegal because the Constitution denies cruel and unusual punishment. Since detainees have not been charged or convicted of anything they are not being punished, therefore it's acceptable to do anything you want to them. Torture is torture and the punishment is for a crime. What the conservatives on the court have done is make torture acceptable all over the world and other countries certainly use much more intense torture than we do.

How do we define militia? We don't even use that word today. The militia was the citizenry in the Jefferson's day. The militia morphed into the Guard. The Guard is now virtually the regular services. When citizens arm themselves like the government today they are likely to be arrested.

I would say Scalia really operates under a modified originality because true originality would mean we would have to allow citizens to own military weapons.