Need Help With "Flexible" Constitution Situation

[yepthatsme]

Hi All!

I am having an email discussion with a liberal relative and the "flexible, fluid, dynamic" Constitution concept came up. The following is a small part of the conversation.

"I see the Constitution as flexible, fluid, dynamic, able to not only inform us, but also to adjust as time, society, and thinking progresses. This applies to the amendments as well, including the 12th. The country has advanced more than our forefathers could ever have imagined."

"The system is now not working, so that every person's vote counts. Why should people vote, if their vote doesn't count?"

"We need to go forward and be a democracy that is inclusive. If the Constitution doesn't grow and keep up with the citizens' views on equality and the present, it is nothing more than an old sheet of paper."

What I am looking for is some good points to ask this relative that will help her question this philosophy. I don't want to attack her or put her on the defense because I do appreciate her taking the time to discuss her views. I need a polite way to help her rethink her position. She could very well shut down if pressed too hard and I really value our relationship so, I don't want to place it in jeopardy. And if the conversation appears to take a turn for the worse, I will gladly drop the subject before damage can be done.

Does anyone have any good points or questions I can ask?

 

[HoughMade]

Do you win money or a longer life if you win this argument? What is winning?

 

[yepthatsme]

Do you win money or a longer life if you win this argument? What is winning?

No. There are no winners here. This is just a discussion. However, I don't want it to get out of hand.


Edit: I may choose to just let the conversation die at this point.

 

[KLB]

Does she realize that the constitution has a mechanism for the people to change it as time goes on? That is how the 12th Amendment got there to begin with.

 

[Kutnupe14]

Explain to her that the 12th is pretty explicit, as to what it means, and ask how she would interpret it, IHO, to reconcile with her wishes. Then bring up the point that the founders envisioned that the Constitution would not be repeatedly re-interpreted based on changing times, but that they believed that constitutional conventions would address these problems, and be used more frequently than we currently do. The issue isn't with the Constitution, it's the belief (held by many) that that the document is almost equal to biblical reverence, and a sin to amend. That's simply the perception many people have, and until we start having conventions again, we're saddled up with whatever the Constitution says, minus the interpretation.

 

[T.Lex]

Agree with her.

Then submit that the same constitution that is flexible enough to protect abortion in the first trimester (something most Americans support)* is also flexible enough to protect individual rights to carry firearms. Which is something else most Americans support.**

The Founders built into the constitution mechanisms that allow it to evolve. They did that in recognition of what she says. This includes SCOTUS review of laws in the contemporary context (in whatever time period "contemporary" is).


*
Abortion | Gallup Historical Trends

**
Majority Say More Concealed Weapons Would Make U.S. Safer | Gallup

 

[yepthatsme]

Does she realize that the constitution has a mechanism for the people to change it as time goes on? That is how the 12th Amendment got there to begin with.

This is one of the questions I was going to ask her. Since the Constitution can be changed using the Constitutional convention process, why does it need to be flexible or reinterpreted?

 

[AtTheMurph]

The Constitution is "The Supreme Law of the Land". Show me which other laws are meant to be flexible, living or otherwise up to the whims of whomever may be deciding the point at that specific time. Is speeding up to interpretation? How about murder? Tax law? Air Pollution? Theft? ERISA? Racketeering? Securities fraud? Which ones exactly??

The "living constitution" bullsh!t would invalidate the need for a Supreme Court as the laws could be interpreted in any fashion that those in power choose. It would also invalidate the entire foundation of our form of Republican government being we are a nation of laws v. a nation of men.

But of course that is the point of the "progressives" who wish to overthrow the liberty enshrined in a nation of laws. They seek a nation ruled rather than a nation free.

 

[T.Lex]

The Constitution, literally, defines how our country is to be "constituted."

It does not, and could not, define what laws are appropriate - only how those laws are to be passed.

Issues with the laws passed should not be confused with issues with the constitution that allow them.

The Constitution is "The Supreme Law of the Land". Show me which other laws are meant to be flexible, living or otherwise up to the whims of whomever may be deciding the point at that specific time. Is speeding up to interpretation? How about murder? Tax law? Air Pollution? Theft? ERISA? Racketeering? Securities fraud? Which ones exactly??

Yes, all of them.

That laws CAN be passed under the Constitution does not mean that they SHOULD. That's on us.

 

[spencer rifle]

"(W)hen a strict interpretation of the Constitution ... is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."
— Supreme Court Justice Benjamin Curtiss, March 6, 1857, dissenting from the Dred Scott ruling that slaves were property

 

[T.Lex]

"(W)hen a strict interpretation of the Constitution ... is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."
— Supreme Court Justice Benjamin Curtiss, March 6, 1857, dissenting from the Dred Scott ruling that slaves were property

Somewhat ironically, the majority decision was more strict-constructionist than the dissent.

 

[AtTheMurph]

The Constitution, literally, defines how our country is to be "constituted."

It does not, and could not, define what laws are appropriate - only how those laws are to be passed.

Issues with the laws passed should not be confused with issues with the constitution that allow them.



Yes, all of them.

That laws CAN be passed under the Constitution does not mean that they SHOULD. That's on us.

What's your point?

 

[T.Lex]

That you are wrong about the Constitution being interpreted inconsistently with what was intended. (If that is your assertion; if it isn't, then I misunderstood.)

It has been and is being applied as it was intended - or as close as we can humanly come in any given generation.

Dred Scott is a great example.

The line from Miller to Heller is probably another.

 

[yepthatsme]

Thanks for all of the input. Everyone has helped with my reply. I probably won't send a reply for a few days so, if there is more advice please feel free to contribute.

 

[Jludo]

I dislike appealing to the authority of the Constitution, I think that today we should focus on winning the philosophical arguments and spreading knowledge. I don't see 'because the Constitution says so' as a winning argument for us going forward, I want to see the ideas of liberty and limited government overcome on their own merits.

I just got to visit the Jefferson monument a few months ago, one of my favorite passages:
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

 

[CountryBoy1981]

I'm pretty sure due process is pretty explicit in the constitution. Korematsu v. United States is what you get with a living document: https://www.oyez.org/cases/1940-1955/323us214

 

[GodFearinGunTotin]

If the law (or the Constitution) does not mean what it was meant to mean; if it's flexible and changing; then it really is a scrap of old paper...we are truly in a democracy and all the tyranny and destruction that inevitably evolves from them. It's when the law is stable and consistent that we can go about our lives, our businesses, and interactions with others in confidence. Just because the shifting meaning of the law is swinging in your direction today, it is very likely it will swinging against you later--then will she support this "evolving quality" she extols?

 

[ATM]

Crush her. See her driven before you. Hear her lamentations.

 

[jamil]

I dislike appealing to the authority of the Constitution, I think that today we should focus on winning the philosophical arguments and spreading knowledge. I don't see 'because the Constitution says so' as a winning argument for us going forward, I want to see the ideas of liberty and limited government overcome on their own merits.

I just got to visit the Jefferson monument a few months ago, one of my favorite passages:
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

I agree that emphasizing the philosophical argument is more important, but rather than simply not appealing to the authority of the constitution, it would be wise to correct the misunderstanding about the roll of the constitution as part of the philosophical argument. I would rather try to persuade that a society governed by rule of law is superior to a society governed by the whims of popular culture. Because we are a nation of laws we have a prescribed way to update the constitution when it's necessary. But it's intentionally hard to update the constitution to protect the rule of law from the whims of fad.

 

[actaeon277]

Yes, the Constitution is a "living" document. That means there are mechanisms to modify it.
That doesn't mean you IGNORE it.