6/22/2009
Please respond to one or both of the link(s) below:
http://www.npr.org/templates/story/story.php?storyId=105748678
Court Sidesteps Major Ruling Over Civil Rights Act - What are your thoughts on the Supreme Court's action?
http://www.npr.org/templates/story/story.php?storyId=105439966
Originalism! - What are your thoughts regarding Justice Scalia's 2008 comment:
"If you somehow adopt a philosophy that the Constitution itself is not static, but rather it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you eliminate the whole purpose of a Constitution. And that is essentially what the so-called living Constitution leaves you with."
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Hey all! Oh boy, first comment. Here it goes...
ReplyDeleteI would like to comment on the second link, regarding Originalism. For one, I do not believe that Originalism is a realistic way to view the Constitution. In fact, I believe America is a unique nation because it is based off of a legal document that has the ability to evolve. To reiterate so you don’t have to scroll up, here is the quote: "If you somehow adopt a philosophy that the Constitution itself is not static, but rather it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you eliminate the whole purpose of a Constitution. And that is essentially what the so-called living Constitution leaves you with." There does run a certain risk in having a document that can be interpreted loosely—the Anti-Federalist fear of the elastic clause and similar interpretation epitomizes this. However, the alternative is surely worse. To be stuck with a document that we must interpret as written is not helpful. Why, as a country, should we base our decisions and interpretations off of a different time period? The Founding Fathers had recently been fighting for their independence from Britain, and had experienced the failure of the Articles of Confederation. These events, possibly more than any other factors, influenced their writing. These are very specific, very original experiences; it is unrealistic to try to interpret every constitutional situation with this mindset. Justice Scalia and I would not agree on the purpose of the Constitution. His comments imply that the Constitution is the absolute word, that there is no room for interpretation from situation to situation. It is a definite map to follow with clear guidelines and therefore holds the one true answer. However, the volatile arguments that have erupted for years over the meaning of this all-important document prove that it is IMPOSSIBLE to interpret the Constitution the same way in every situation. The importance of the Constitution is not in the motives that the writers had, but rather in the fundamental principals that our Founding Fathers wanted our country to remember. Without the “morphing” ability of the Constitution, how would America be different than Russia was during the Industrial Revolution, with a feudalistic economic system? We would never be able to evolve with the world, and therefore would be left in the dust. The United States is lucky to have a document malleable enough to make situational exceptions, yet still have very basic, unarguable facts. Mr. Balkin comments on these varying levels of specificity in the article. Overall, I find Originalism as a practical deification of our Founding Fathers—it assumes that all of our motives and possible needs were summed up by those few men. Their brilliance was not in thinking through every possible situation, but rather intentionally (as Mr. Balkin pointed out) making passages vague so future interpreters could mold the document to their needs. Perhaps this puts too much trust in the above mentioned interpreters, but let’s leave the conspiracy theories about government, Big Brother, 1984, etc. up to another blog, shall we? :)
The above quote by Judge Scalia implies that the people and politicans will use the Constitution to best fit their needs at any given time. Originalism, as defined in this article, is following the Constituttion to the letter; strict interpretation. This would mean that we could not change anything and that is not a practical view to take, escpecially today, as we are over 200 years removed from when the Constitution was adopted.
ReplyDeleteThe Constitution was adopted in 1787, and only 15 years later, Jefferson was bending the rules in order to justify purchasing the Louisana Territory, thereby using 'loose interpretation'. Already change was occuring, and the Constitution was constructed so as to allow for change.
A point that was brought up in the article was that there are certain parts of the Constitution that are very specific and others that are vague. It was the vagueness of certain areas that allowed and allows for change to occur as the country continued to grow and still grows today.
One could say that Congress forsaw the need to make provisions for change as the United States would not remain the same. One such provison is the drafting and passing of amendments. Through the amendments, many changes have occured: slavery was outlawed (13), African-Americans received the right to vote (15), women received the right to vote (19), and prohibtion was passed (18) and then repealed (21).
Change is necessary and good and we have built in to our government a system of checks and balances that allows for change to occur, but not to quickly. The justices who sit on the Supreme Court hold their positions for many years and because of this, relatively little change occurs. The justices ensure that change occurs, but not in great leaps and bounds. The justices, when reviewing a case, carefully review precedent cases and the Constitution in order to present a ruling that best upholds the Constitution. At times, it is found that changes are in order to better reflect the growth of the country, as shown during the Civil Rights movement during the 1950s and 1960s in Brown v. Board of Education (1954).
A quote by Reva Siegal, Yale Law Professor, concering the Constitution "[The Constitution is a] living tradition that links the struggles, commitments and beliefs of Americans past, present and future" is more appropriate in describing the role of the Constitution then Judge Scalia's harsh view that in order for the Constitution to allow change it will be the type of change that only benefits certain people at certain times.
It is important to stay close to the Constitution as our founding source of government, but as time has shown and what the Founding Fathers allowed for, change is necessary for we can't be held back by an 18th century mentality. The people and governemnt of the United States have changed over time and it can only be for the best that the Constitution changes with us.
Found an interesting court case regarding the 6th amendment. Does a drug analyst have to be present at a trial in order to state a defendent was in possession of cocaine, or is a certificate enough?
ReplyDeletehttp://www.law.cornell.edu/supct/html/07-591.ZS.html
Okay, I responded to the first, where the Supreme Court stated that the utility district in Texas is exept from any provisions stated in the Voting Rights Act. Suprisingly it was decently entertaining:
ReplyDeleteThe fact that the Supreme Court excused the utility district from the provisions of which the Voting Rights Act declares, is showing how lax some of these officials are becoming. The provisions that are clearly stated in Section 5 of the Voting Rights Act depict that the state, city, or area that is attempting to manipulate their voting regulations must get these changes cleared by a high standing government official or the like. These types of insurance acts are put into order in an attempt to solidify the justice in future decades. Although once the Supreme Court declares of any district, let it be clear that this is the first, but may not be the only case, that they are exempt from the provisions that this law states, it may be an opportunity for misfits to take advantage of the lax nature, and do regrettable damage. The growth that the nation has seen, since 1964, regarding civil rights has been miraculous, but this advancement was at a time when the Act being respected by all. The fact is, is that this almost unanimous decision could hold a devastating future, or it could be practically harmless. We can compare this to a windshield on ones car: if a rock collides with the glass it normally cracks, but doesn’t give. Now say we do not repair the glass and another rock hits it, it may not shatter, but it is even weaker than before; eventually though it will shatter, given enough time. The windshield portrays the Act, and each verdict stating the provisions exempt are a stone…the Act may give way, or it may still stand strong. Although, we have no knowledge of the future, so it is safest to uphold the Voting Rights Act from the beginning; or repair it, now that it has been cracked.
Listening to NPR, I heard a summary of a court case that the Supreme Court had recently made a ruling on. It was about a strip search of a girl when she was 13 years old in an Arizona middle school. She was said to have perscription drugs so they searched her locker and her backpack. None were found. She then had to go into the nurse's room with the nurse to undress so her clothes could be checked. On the radio, they kept using the phrases "reasonable actions" and "reasonable person". That begs the question as to how to define reasonable actions by reasonable people.
ReplyDeleteHere is the article link which has more in-depth information.
http://www.cnn.com/2009/CRIME/06/25/scotus.strip.search/index.html
I would like to resond to the second link...
ReplyDeleteHere is the major quote:
"If you somehow adopt a philosophy that the Constitution itself is not static, but rather it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you eliminate the whole purpose of a Constitution. And that is essentially what the so-called living Constitution leaves you with."
I would have to say that i would agree that the constitution was written in a way that it would eventually morph and evolve depending on the generation that was interperting it. I feel this way becuase the founding fathers must have thought that someday the american lifestle would be different from the one they lived in and that a document that would change with the generations and time would be the most convienent and easist way to go. I believe that if we did not have a document that evolved over time we, as americans, would have to be constantly amending the constitution so that what the constitution reads stays constant to what the current events are of that time of interpertation. I also believe that the founding fathers figured that colonists were tired of the tyranny the suffered from our buddies across the pond. I think that during the designing of the constitution the founding fathers kept in mind how brash and harsh king george was with them and created a document that could be interperted freely and without only one interpertation.
Chanse
Regarding to the first link, I believe it is completely wrong of the Supreme Court to allow the Northwest Austin Municipal Utility District No. 1 to “be exempt from provisions of the Voting Rights Act.” Just the fact that they are allowing someone to shortcut the law raises my attention. As mentioned in the article, this decision could lead to more governmental entities in the states that the law applies to. Though this particular district may not register voters, they still should not be allowed to sidestep receiving advanced approval from the Justice Department or a federal court when/if they desire to change their voting procedures. This decision leaves the minorities at risk in the district. Though the level of discrimination in the utility district is unknown to me, the law was set in place for an important reason and was re-enforced recently in 2006. The district should respect that decision and follow by that original law. The law ensures that minorities will always be treated fairly in areas that had proved themselves violent and unfair; obviously the law should be kept firmly in place to ensure everyone is treated justly.
ReplyDeleteRegarding to the second link, though I see that Scalia has a point by saying that the Constitution will morph to whatever the people want it to say, I also see that the people’s lifestyles change and evolve as well so the laws in turn must as well. The Constitution was written when women and black’s had no rights. Today we have a black president as well as women running for president and vice-president. The United States has taken leaping advancements leaving us where we are today. The Constitution should not be taken for word for word. If we read everything and take if for exactly what it says without interpretation we would not advance.
Very thoughtful comments - each of you! I am excited for your classroom discussions! Hmmm ... strict constructionists versus judicial activists ... how will our class evolve? Savannah - I also thought the strip search case was interesting. We will discuss which of your rights you leave "at the school house doors" and why. Casey - I loved the windshield analogy! Listen for Justice Scalia's soundbites ... they are so entertaining!*
ReplyDeleteWe are off to a great start - feel free to respond to your colleagues! A few classmates have not responded yet - help them out if they have not been able to negotiate the blog site. In addition, David, the Cornell website is excellent and one that I use throughout the year.
I would like to respond to the second article about originalism.
ReplyDeleteTo recapitulate the aforementioned quote:
"If you somehow adopt a philosophy that the Constitution itself is not static, but rather it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you eliminate the whole purpose of a Constitution. And that is essentially what the so-called living Constitution leaves you with."
To say that we should live by the Constitution, as written and without any sort of deviation, is to say that we should don ourselves in white wigs and corsets; if we were to abide completely by it, we would be bound to the years of past life forever. We live in a modern world - an evolving, everchanging society - that requires change.
That said, the Constitution itself was purposefully made fairly vague and flexible to our nation as though our Founding Fathers premeditated the state of progression that we're in today. We're meant to reinterpret it time and time again and apply it to numerous different situations. We're meant to make amendments as new predicaments come up that demand attention.
To exploit the movie geek in me, I'll quote Pirates of the Caribbean: "They're more like guidelines, anyway."
The Constitution is something our nation can fall back on at any given moment. Each rule is a guideline - something to push us in the right direction, albeit slightly altered in the long run. Time has an effect on society as well as government, and it's only just to assume that the Constitution be involved in the change.
Oh, and I wanted to make a quick response to Savannah's article:
ReplyDeleteI heard about it the other day. I was somewhat appalled by it. A 13-year-old strip-searched?! It truly does make a person question what is reasonable and what is not, as well as who defines what is and what is not reasonable. Granted, it's circumstantial, but nonetheless.
Hi all! Hope everyone is having a great summer!
ReplyDeleteI’m responding to link 1. I cannot believe that the Supreme Court allowed the Northwest Austin Municipal Utility District Number 1 to “be exempt from provisions of the Voting Rights Act.” The law is obviously in place for a reason and Congress would not have voted in 2006 to renew the Voting Rights Act for another 25 years if they did not believe it still had meaning and should be in place. Through more research, I was finding that many people believed that while the Voting Rights Act had many accomplishments in the past that today it’s “preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system.” If the act now isn’t applicable to our legal system, then why was it renewed for another 25 years? And if it is not appropriate for today’s times, then why did Congress renew it? Personally, I trust that Congress renewed the act for a purpose and their judgement to renew the act should be respected and put into place. This district should not be an exception to the law. By
allowing Northwest Austin Municipal Utility District Number 1 to be excused from the preclearance requirements of the Voting Rights Act, who is going to try to stop other districts from doing the same thing? Much like Casey said, the Act needs to stand strong in it’s purpose and it should not be allowed for any district to side step around the law.
Also from the 1st link, I found this towards the bottom of the page:
ReplyDeleteIn other Supreme Court actions Monday:
• The justices agreed to decide the constitutionality of a federal law allowing the continued imprisonment of sex offenders even after their sentences have been completed.
The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled earlier this year that Congress did not have the authority to allow indefinite imprisonment of "sexually dangerous" persons as a provision of the 2006 law.
The law was challenged by four men who served from three to eight years in prison for possession of child pornography or sexual abuse of a minor. Their confinement has been extended for more than two years because the government determined they posed a risk of violence or sexually violent conduct if they were released.
The Justice Department challenged the 4th Circuit decision, and Roberts granted a government request to block the release of up to 77 inmates at a federal prison in North Carolina while the high court considered the appeal.
The case will be argued during the court's next term, which begins in October.
Other provisions of the Adam Walsh law — named after the son of America's Most Wanted television host John Walsh — which established a sex offender registry and increased the punishment range for some federal crimes against children, were not challenged.
The case does not affect state laws that permit such commitments.
I thought it was something to certainly ponder. I believe that sex offenders should receive longer imprisonment time then most of them are currently receiving ,but should those who have already been sentenced and/or have served their time have more time added to their sentences? What do ya'll think?
Shelby -
ReplyDeleteIt's an interesting point. I was intrigued by it as well when I read about it.
I personally believe that sex offenders are some of the worst criminals known to man, and I wouldn't mind if they got locked up for a long period of time because it would mean there would be less creeps like them out on the streets, and they wouldn't get the chance to strike again. However, it's hard to judge how constitutional it is to give them additional time behind bars. There's a significant amount of things that have to be considered: Would the law be used against them as a person or as a whole? That is, would the law change due to a specific person's case, or would it be abided by all sex offenders? And if so, would it be fair to all of them? And what is the definition of "fair"?
It's a difficult question, to say the least, but one that I would be interested in exploring.
I am responding to the first link. I am outraged by the quickly overlooked decision the Supreme Court made that allowed the Northwest Austin Municipal Utility District Number 1 to be “exempt from provisions of the Voting Rights Act.” No one in the United States should be exempt from any law or act passed by the Supreme Court. Just as in Casey’s analogy, if one case were to be allowed to escape the restrictions laid down by the law, more court cases in the future will look back and use this Supreme Court decision as an influence.
ReplyDeleteLetting this one small Municipal Utility District be an exception to the law might not harm our nation as a whole, but may influence more important issues in the future. This law was laid in place for a reason and wasn’t recently extended on a whim. Therefore, decisions based upon this thought out act should not be sophomoric or overlooking. Why would the Supreme Court excuse an act that has recently been renewed? Obviously, this act is still essential for our legal system where it keeps voting rights equal among minorities; in ignoring this act, an impression is made that laws and acts made by the Supreme Court aren’t as set in stone as one would think.
Hey all... I know it's a little late, but I'd like to respond to the second link.
ReplyDeleteI was actually a little confused on what the term originalism meant, I did gather the general gist of it, but went to my trusty friend Dictionary.com to be sure. This is the definition I got:
Originalism: The belief that the US Constitution should be interpreted according to the intent of those who composed and adopted it.
I tried to keep that in mind as I read through the article. That being established, I think that Judge Scalia's comment was taking the concept of originalism to the extreme. I completely disagree with his statement. I believe that the founding fathers, as they wrote the constitution, anticipated a changing society and world view. It is my personal belief, based on that above definition of originalism, that originalism should allow for that change, and should allow for different interpretations of the Constitution. On that basis, I would have to agree. Change is healthy and necessary for the growth and survival of any society. That was well understood by those men who wrote the constitution, as they had obviously just battled through a time of intense change themselves. The ability of the American government to amend the constitution, in my opinion, holds true to the concept of originalism because that is how the founding fathers intended the document to be interpreted. Judge Scalia's comment doesn't comply with the concept of originalism in my opinion, but is rather a statement of a person with a limited mind. To imply that a healthy American society should revolve around a "static" constitution is ridiculous and obviously not well though out. Scalia states that to allow the constitution to "morph" and change "eliminate[s] the whole purpose of [the] Constitution." But to believe in a static constitution would be to not allow for any amendments, which after all are benefactors of change. It would mean that our society would be limited, if the US had even progressed to have a functioning society at all. The Constitution was made to be interpreted and modified as the times demanded it be, and the concept of originalism, not Judge Scalia's quote, complies with that theory.
I will be commenting on the second article.
ReplyDeleteI find Originalism to be a very sensitive and interesting subject, especially regarding our right to bear arms and some that serve a bit of a lesser purpose such as the 3rd Amendment. From what I see most, if not all of today's society is based off of a traditionalist view as not much has changed politically policy wise (although this can be argued.) If anything a living constitution means that it is far easier to be manipulated by the Government itself. For example, the 2nd Amendment. In my own words,with a bit of humor, "Hey guys, lets take away the people's guns on a minor technicality resulting from our own massive insecurity of open revolt! But wait! Let's arm the military and militia under our control!" Although this is a very, very light and inaccurate interpretation of what is actually going on, the average citizen sees it as such and not as the actual serious subject that it poses. Another
example is that an entire Amendment was created for Senator's wages specifically, while a law would suffice. What is actually pertinent is how something so insignificant can actually be turned into an
amendment, and therefore lower the impact of the others. In short, if my rambling on has made any sense, a "living" constitution is no better then laws that can be overturned won-tonly. How can we base our nation on a foundation that not even we can agree upon its meaning?
As an after note I am not amused at the lack of copy/paste support in FireFox, nor do I think this tiny window is sufficient for any serious editing as such I apologize for any serious errors as I have typed this a good five times trying to make this work.
Hmmm ... a lot of interesting points - well done. I encourage you to respond to each other's posts.
ReplyDeleteKarissa, I am certain you are not the only one confused by the term "origninalism." Great job getting your arms around it - you will find that it comes up throughout the class.
Justice Scalia is a lot of fun to follow ... some of you will find him outrageous, while the conservatives in the class will enjoy quoting him.
Kris, I agree that this window is a tough one for editing ... we will all be forgiving!
i believe that modernism, basically the opposite oforiganlism is neccesary for a nation to achieve lasting greatness. The laws of our nation have to change as different social situations arise, they have to change as meanings and terms progress in our society. When they made the constitution the founders left alot of gaps in the constitution. I believe in this is in part this is because it would have been impossible to determine how society would change in the next 200 or more years. The founders were always looking to the future and they realized that the meaning of the constitution would change. I believe they felt that it had to maintain "originalism" in that the overall basis and foundation of the constitution was to stay the same but minor things could change with the times.
ReplyDeleteJustice Scalia is wrong. Mostly. Yes, the Constitution was made to morph throughout the years, but no, it doesn't just say whatever the interpreter desires it to say. It is able to change through amendments and there are many restrictions through those, as well as the people advocating for new rights or expansions of rights. The fact that the founders designed the Constitution to grow with the nation as time went on was absolutely brilliant and should be viewed positively. As time goes on, those limitations are still active and thus the interpreter cannot just go and do whatever or say whatever. However, interpretations will alter throughout the years and times, but nothing too drastic.
ReplyDeleteI almost agree with what Robin said. However, the Constitution was made to adapt through the years not because of amendments, but rather how vaguely worded parts of the Constitution are. The founding fathers did this on purpose as to avoid a set of laws that would quickly become outdate. The purpose of the Constitution was the prevent government from taking over every aspect of the lives of its citizens. When government attempts to do this, we can then look back at the Constitution and look at which parts of it are relevant to our time. Not how these were relevant 200 years ago, but how they fit into our lives now.
ReplyDelete