I can sum up "living constitutionalism" in one sentence:

"Judges must dictate what society's evolving standards and morals might be, because actual society is hopelessy behind the times."

Scalia's position, when consistently applied, is the only one that is worthy of a free people. Liberal, living constitution types, simply don't trust the american people to do the right thing. This nonsense of "evolving standards of decency" is a pure smokescreen. If society's standards had really evolved, then the legislative process would be sufficient to change the law. The fact that judges must force change in the face of majority resistence proves that society's standards have not evolved.

It is the job of judges to protect the actual constitution from being eroded by "evolving standards." You've got enough work to do protecting my real, actual, enumerated rights. Let us worry about whether or not we want to add new ones for you to protect.

so little patience for even explaining it to you.

Let's start with glaring stupid statement number 1:

"Why are liberals always so afraid of actual Americans?"

Perhaps because people like you who consider themselves "actual Americans" are saying that anyone who disagrees with you isn't an American. Guess what. I don't agree with you and i'm an actual american. i don't consider myself liberal, but you would. and i can trace my family back in this country for hundreds of years (and yes, i'm also counting my distant native american heritage)

just because a group of people agree to a set of societal standards does not mean they are good standards or fair standards. There is a reason why "majority rules" is not a good policy. Have you never heard the term mob mentality? Do you not remember the Red Scare, McCarthyism and the Witch Trials? Do you forget all the historical riots and hysterical wars that people have fought? Are you completely ignorant of the past or just choosing to consider History irrelevant?

Give me one solid example of conservatives protecting constitutional rights.

You are blinded by idealism.

[Let's start with glaring stupid statement number 1:

"Why are liberals always so afraid of actual Americans?"

Perhaps because people like you who consider themselves "actual Americans" are saying that anyone who disagrees with you isn't an American.]

Ummm . . . Actually, I'm the one advocating for the majority's right to make whatever laws they wish that don't violate the clear and simple meaning of the constitution. I didn't say people who disagree with me aren't american. I'm saying liberals are, by and large, unwilling to let the american people govern their own affairs.

[i don't consider myself liberal, but you would. and i can trace my family back in this country for hundreds of years (and yes, i'm also counting my distant native american heritage)]

Congratulations. What's your point?

[just because a group of people agree to a set of societal standards does not mean they are good standards or fair standards. There is a reason why "majority rules" is not a good policy. Have you never heard the term mob mentality?]

This is true. That is why we have a written consitution that defines the outer limits of governmental power.

But guess what? Judges are people too. If you empower them with unlimited authority to make up the law any way they like, what guarrantee do you have that they will make good and wise decisions? If you dislike their decisions, what power do you have to resist them, short of armed insurrection?

Be careful what you wish for.

[Do you not remember the Red Scare, McCarthyism]

Guess what? The communists really were trying to infiltrate our government during the 1940's and '50's.

[and the Witch Trials?]

Ummm . . . The Salem Witch Trials were atrocities committed in courts and sanctioned by judges. Which is kind of my point.

[Do you forget all the historical riots and hysterical wars that people have fought? Are you completely ignorant of the past or just choosing to consider History irrelevant? ]

I am a student of history. One thing I have learned is that the only long term protection for civil liberties is freedom. If we lose the power to shape our civil society to a handful of oligarchs in black robes, we have lost our freedom.

NightSwimmer:

Give me one solid example of conservatives protecting constitutional rights.

You are blinded by idealism.

The NRA, (2'nd amendment)

Rush Limbaugh (1'st amendment, against "fairness" doctrine and CFR)

The Federalist Society (10'th amendment advocacy of state and private rights and limitation of federal power)

The problem is that you libs think of constitutional rights only as the right to murder babies, homosexual marriage, and be paid by the government to create art that nobody wants to buy. All the actual enumerated rights are defended by conservatives.

you want the majority to have final say as long as it's the same as YOUR say. we've been through this before. you posit the same lame oh positions over and over and throw out ad hominem attacks at "you libs" when the term doesn't even apply. you assume stances on views that we aren't even discussing and you expect to be taken seriously. no. sorry. you are divisive and your stance in reference to this thread is simplistic- something i would expect from a school bully.

i'm not in favor of an oligarchy, either. but that's what we have already. only it's laughable that you act as though the judges are the ones captaining this ship. that's just part of the far right's disinformation campaign, and the only ones who buy it are idiots and you guys. you'd be taken more seriously if you actually attacked the real oligarchs in our country- the corporate elite- and laid off the rush limbaugh talking points. truth is that people like you and him evidently don't know what conservatism in the traditional sense actually means, because today's conservatives have gone far afield from where the ideology began.

The liberal justices sided with the corporations and state to take land from a induvidual citizen, perfect example......

[you want the majority to have final say as long as it's the same as YOUR say. ]

Ummm . . . On what do you base this charge?

[we've been through this before. you posit the same lame oh positions over and over and throw out ad hominem attacks at "you libs" when the term doesn't even apply. you assume stances on views that we aren't even discussing and you expect to be taken seriously. no. sorry. you are divisive and your stance in reference to this thread is simplistic- something i would expect from a school bully.]

Hey doofus, the article I posted in response to was discussing "liberal consitutional theory." I never accused you of being a liberal. I don't have the first clue who you are. I was responding to the article.

[i'm not in favor of an oligarchy, either. but that's what we have already. only it's laughable that you act as though the judges are the ones captaining this ship. that's just part of the far right's disinformation campaign, and the only ones who buy it are idiots and you guys. you'd be taken more seriously if you actually attacked the real oligarchs in our country- the corporate elite-]

Hmmm . . . How exactly do you define the "corporate elite," and how do they form an oligarchy? And what does that even have to do with the subject of whether or not judges can pull new "rights" out of thin air?

[truth is that people like you and him evidently don't know what conservatism in the traditional sense actually means, because today's conservatives have gone far afield from where the ideology began.]

Then by all means, enlighten me, genius.

Hst_Fan:

The liberal justices sided with the corporations and state to take land from a induvidual citizen, perfect example......

So much for "liberals" being so concerned with individual rights . . .

The rule of law sets the standards of decency and in this country our laws are based on the original Noahide laws. Without these laws a society will (and has every time) crumble from within until it is eventually too weak to defend itself. Then someone else comes along and takes over. Conservatives are doing everything they can to maintain these laws because they are students of history and as such they know very well what will happen if these laws are allowed to disappear. This is why conservatism is about maintaining the status quo, which is often taken out of context by liberals and assumed to mean that we do not want change for the good. Maintaining the status quo in this case means making sure that behavior that is unacceptable, inexcusable, and immoral stays that way. In contrast the liberals are doing everything that they can to rip the rule of law apart. They want to lower the standards to the point that anything and everything is acceptable. They fully and completely accept anything you’re doing wrong as long as you accept what they’re doing. This is of course and expression of “me-ism”

The rule of law is indeed a fair standard as long as it is maintained. If new laws that erode the rights or morality of society are introduced then they are evil laws and should be repealed. This is especially true when the Supreme Court passes a law without the consent or approval of society.

Senator McCarthy was an extremist who was allowed to use a legitimate reason to be concerned (the Red Scare) to use unreasonable and unfair practices. The truth of the Salem Witch Trials is unknown to most and has largely been lost to innuendo, implication, misdirection, blame shifting, minimization, and excusing. If you take the time to do the research and dig deeper than just the surface reporting you would find that the people that were accused were in fact quite guilty. They did some wild, crazy, and evil things and the local populace was so shocked and traumatized that the event became infamous. Unfortunately, the truth has been obscured by the rampant false accusations and bizarre and insane techniques used to prove of disprove that someone was a witch. Because of this the majority of the people living today have no idea of what they’re talking about. You must look deeper if you want to understand what really happened.

Which riots are you referring to? The majority of the more recent riots (last 100 years) have been over race or liberal ideas. Also, which wars are you referring to? You’re going to have to be more specific.

Cassandra

There's a minor problem that the rigidity of the so-called originalists ("my real, actual, enumerated rights") seems to cause them to conveniently ignore. The drafters of the constitution, well aware that the country would evolve, gave themselves (and thankfully, us) an out to let the contstitution live. It's called Article 9. It reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Hence, what originalists like to call the rights which are "new ones" or special rights, are neither - they just aren't enumerated. Which doesn't mean the Constitution doesn't protect them. Sorry, the document lives and Article 9 is there to see that it keeps right on living.

Gotta' love it when people resort to name calling rather than real arguments....

So, society never really changes, huh? So how would you care to explain the abolition of slavery (which many people did not want to happen) or perhaps women's suffrage? Just because something is a popular stance does not make it right. Certainly, society is slow to change but so it goes with any large institution. Institutional inertia can barely keep up with the pace of modern society.

I do not fail to recognize the brilliance of our many founding fathers but they would undoubtedly never have claimed to be perfect or capable of writing a perfect document. To claim otherwise assigns a particularly specious air of infallabilty to those who began our beloved nation . They did what they could, knowing that it would be passed on to other generations but not really sure what it would come to. Not to mention the fact that written works will always be open to interpretation, especially one that has so many authors (see:the Bible).

You can complain all you'd like about those awful, horrible, disreputable liberal punks in black robes who defile the sacred Constitution all you'd like but plenty of conservatives have done their part to erode its powers as well. Suspension of habeus corpus, warrantless spying and such are a matter of legal wrangling and arguing but it all depends on whether you ideologically agree with it or not. Grabs at the "unitary executive" is explicitly forbidden by the Constitution but many "origianlists" seem to have no problem with this one.

The point is that the Constitution was written by humans for humans and is weilded in many different ways by many power brokers. To assume that a guy like Scalia, or any human being, always gets it right is a dangerous notion indeed. It isn't surprising, though, that a religiously dogmatic person would ascribe such a level of perfection to one single document and put it on the highest pedestal then claim that they are the only ones with the key, the only one who know's "the truth."

Antonin Scalia is the scuzzy guy he just doesn't know it.

Evolving social standards are not the issue. The checks and balances of the Constitution are the issue. Laws are drafted and passed by the Legislature and approved or vetoed by the executive branch. The matter can be brought before a court to determine if the new law, violates the constitution. The legislature and the executive branch have the dual checks of the voters and the judicial branch.

Federal Judges are appointed for life. If judges begin legislating from the bench, there is no check or balance if the only measure is evolving social standards. Violence has increased enourmously in our society, an evolution in the wrong direction. Does that mean a judge can downgrade assault to the level of a parking ticket.

Your examples were perfect for the "original" interpretation arguement as they were both addressed legally by use of the amendment process.