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  is the "but what about the constitution" argument a cop out?
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Author Topic: is the "but what about the constitution" argument a cop out?  (Read 1134 times)
freepcrusher
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« on: November 13, 2018, 04:01:52 pm »

I feel that yes the constitution should be referred to, but that we need to stop being ashamed by the "living document" idea because its been around for 230 years and new issues arise that could theoretically invalidate some of the amendments. I feel that when people say "is it in the constitution" that they are effectively trying to end the argument and, to quote Molyneux, is "not an argument".
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Associate Justice PiT
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« Reply #1 on: November 14, 2018, 03:15:01 am »
« Edited: November 14, 2018, 01:38:41 pm by Associate Justice PiT »

     This post is quite non-specific. If it is meant to be an attack on strict constructionism (e.g. someone questioning that the Fourth Amendment can apply to computers because it does not explicitly refer to such), then I have no complaints. If it is meant to be an attack on original meaning (e.g. that the First Amendment guarantees the protection of hate speech because given what was understood about political theory at the time it was inconceivable that it would not do so), then I must disagree. The Constitution's power derives from the constancy of its spirit in time, even if exact details must change to keep up with the changing social and technological landscape; protections that change with the whims of public opinion are not effective as such.
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MarkD
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« Reply #2 on: November 14, 2018, 01:01:32 pm »

No, I believe that federalism is a valid argument. We have a Constitution in which the federal government was not delegated all of the governmental powers that need to be exercised. Only certain powers are delegated to the federal government and the rest are left to the states. The idea that the federal government has to justify the laws it makes by pointing to an enumerated power is reinforced by the Ninth and Tenth Amendments. And there are lots of federal judges who believe in this principle, and the number of judges who believe in it will keep growing so long as President Trump continues to rely on the Federalist Society for advice who to appoint to the federal bench. Because of the possibilities of litigation, the federal government still has to defend its laws by pointing to an enumerated power in the Constitution to justify its laws.
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J. J.
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« Reply #3 on: November 15, 2018, 02:26:28 am »

I feel that yes the constitution should be referred to, but that we need to stop being ashamed by the "living document" idea because its been around for 230 years and new issues arise that could theoretically invalidate some of the amendments. I feel that when people say "is it in the constitution" that they are effectively trying to end the argument and, to quote Molyneux, is "not an argument".

Does this mean we could have slavery? 
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BackWoodsSouthernLawyer
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« Reply #4 on: December 11, 2018, 06:10:27 pm »

I feel that yes the constitution should be referred to, but that we need to stop being ashamed by the "living document" idea because its been around for 230 years and new issues arise that could theoretically invalidate some of the amendments. I feel that when people say "is it in the constitution" that they are effectively trying to end the argument and, to quote Molyneux, is "not an argument".
I think the Constitution is written broadly enough so that it can apply to a range of situations. Example the 4th Amendment protects citizens from "unreasonable" searches and seizures without a warrant. Just that one word makes all the difference and courts have interpreted that to give the police the power to search you for all kinds of reasons like exigent circumstances, searches incident to arrest, inventory searches of cars, etc.
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Flyersfan232
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« Reply #5 on: January 27, 2019, 12:23:34 pm »

I feel that yes the constitution should be referred to, but that we need to stop being ashamed by the "living document" idea because its been around for 230 years and new issues arise that could theoretically invalidate some of the amendments. I feel that when people say "is it in the constitution" that they are effectively trying to end the argument and, to quote Molyneux, is "not an argument".
lets say i kill someone that person body will then decay it would be the same state it was when it died but it isnt living either.
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Karpatsky
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« Reply #6 on: January 27, 2019, 12:35:57 pm »

I feel that yes the constitution should be referred to, but that we need to stop being ashamed by the "living document" idea because its been around for 230 years and new issues arise that could theoretically invalidate some of the amendments. I feel that when people say "is it in the constitution" that they are effectively trying to end the argument and, to quote Molyneux, is "not an argument".

Does this mean we could have slavery? 

The reason slavery is bad has nothing to do with its prohibition in the constitution.
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RoboWop
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« Reply #7 on: February 20, 2019, 03:04:26 pm »

     This post is quite non-specific. If it is meant to be an attack on strict constructionism (e.g. someone questioning that the Fourth Amendment can apply to computers because it does not explicitly refer to such), then I have no complaints. If it is meant to be an attack on original meaning (e.g. that the First Amendment guarantees the protection of hate speech because given what was understood about political theory at the time it was inconceivable that it would not do so), then I must disagree. The Constitution's power derives from the constancy of its spirit in time, even if exact details must change to keep up with the changing social and technological landscape; protections that change with the whims of public opinion are not effective as such.

I think this post is meant to call constitutionalism itself into question.
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Associate Justice PiT
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« Reply #8 on: February 20, 2019, 06:40:23 pm »

     This post is quite non-specific. If it is meant to be an attack on strict constructionism (e.g. someone questioning that the Fourth Amendment can apply to computers because it does not explicitly refer to such), then I have no complaints. If it is meant to be an attack on original meaning (e.g. that the First Amendment guarantees the protection of hate speech because given what was understood about political theory at the time it was inconceivable that it would not do so), then I must disagree. The Constitution's power derives from the constancy of its spirit in time, even if exact details must change to keep up with the changing social and technological landscape; protections that change with the whims of public opinion are not effective as such.

I think this post is meant to call constitutionalism itself into question.

     Yes, and like most anti-Constitutionalist arguments it doesn't seem to know what it is arguing against.
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RoboWop
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« Reply #9 on: February 20, 2019, 10:30:56 pm »

     This post is quite non-specific. If it is meant to be an attack on strict constructionism (e.g. someone questioning that the Fourth Amendment can apply to computers because it does not explicitly refer to such), then I have no complaints. If it is meant to be an attack on original meaning (e.g. that the First Amendment guarantees the protection of hate speech because given what was understood about political theory at the time it was inconceivable that it would not do so), then I must disagree. The Constitution's power derives from the constancy of its spirit in time, even if exact details must change to keep up with the changing social and technological landscape; protections that change with the whims of public opinion are not effective as such.

I think this post is meant to call constitutionalism itself into question.

     Yes, and like most anti-Constitutionalist arguments it doesn't seem to know what it is arguing against.

Maybe OP is laying the groundwork for a restoration of the Stuart monarchy.
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Fuzzy Bear
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« Reply #10 on: March 09, 2019, 01:13:00 pm »

The "living document" idea is ridiculous.  Great weight should be attached to the intent of the Framers, as they wrote the Constitution as an ongoing Framework to both organize government and limit government.

Judicial activism has given us Roe v. Wade.  It has also given us Citizens United.  Much to dislike on both sides.  The Judicial Activism wrought by the "Living Constitution" paradigm has negated the will of elected legislatures in favor of the will of an unelected Court.  There are times where that should be.  But we have gotten to the point where self-rule is a diminishing concept.   
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