That is indeed the crux of what a blog is and the ability of readers to offer comments in an interactive format is why this unique outgrowth of the information age has become a critical means of sharing personal opinions, thoughts, reflections, comments.
In early October of this year I posted a blog in which I offered my thoughts on the debate as to whether our Constitution should be, emblematically, living or dead. The question is one that gained a degree of recognition and dialogue following testimony given by Justice Antonin Scalia.
Feedback came from both sides of the political and philosophical divide and that answers the question as to why blogs are in themselves one of the better definitions of not only free speech but also effective evidence that we are indeed a species differing from all others. We have an intellect and a free will.
To that end I have the distinct pleasure of posting a rejoinder from two friends of decades' duration. My initial response was that it also upholds that science and philosophical hypotheses both respond to Sir Isaac Newton’s Third Law: they are equal, opposite and collinear. That is how it should be.
We, Carl, Joe and I, invite others to offer their comments. Together, and in the spirit of the Founders, the title of Thomas Paine’s book will be the result as it has throughout the history of our country: "Common Sense".
From: Carl A. Palminteri & Joe McHugh
We are vital cogs living within the beast known as The Great Right Wing Conspiracy. As such we conspired to respond to your SCOTUS Blog entry.
Do with it what you will but never let it be said I (we) ducked a challenge (although it did take a bit of time to get the collaboration down pat).
The Constitution - Living Dangerously
Tom......To you, the idea of a "Living Constitution" seems both benign and useful. On our side of the political divide, though, it seems as if the idea is a threat, not a solution. To further it the Left seems to be hanging its hat on the Commerce Clause. Their use of this clause shows how "originalism," once overwhelmingly the orthodox belief of our judges, has been distorted by our present day judiciary. It is our belief that our judges have taken the plain meaning of the words of the Framers and turned the Commerce Clause into a catchall of the fanciful Big Brother whims of the 'Living Constitution' crowd. Sorry if you can see the sparks flashing here but we see this idea as very very dangerous.
As Martin Luther said, "Here I stand." The decisions of our courts must never be grounded on the personal preferences and prejudices and likes and dislikes of an individual justice. Yet that is exactly what the "Living Constitution" idea allows.
You like having it this way. Why not? It seems to you that the Living Constitution gives you results that you usually like.
You shouldn't like it at all, though.
Why?
Let's start with this hypothetical example:
Say it's a few years in the future. As it happens these few years have resulted in a swing of of the political pendulum. A (formerly) frequently liberal judiciary has now been superseded by a judiciary that contains a surprising preponderance of conservatives.
In this new era a new wave of political protests, much like Occupy Wall Street and originating on the Left, has once again spread across the nation. It is enjoying significant success and the groups at which the protests are aimed feel seriously threatened.
They thank God, though, because they have two assets that can save them. One of these assets is a conservative judiciary that has grown tired of what they view as disorder in the streets. The other is a Commerce Clause first stretched beyond recognition and then bequeathed to conservatives by their liberal predecessors on the bench.
The upshot? Recall the Sherman Antitrust Act, passed in 1890? Remember how it was aimed at monopolies but often was used to suppress labor unions as "conspiracies in restraint of trade?" Well, now we have a (living, Commerce Clause and in the right hands it can be used in exactly in the same way. So groups are protesting against business? They are hindering the smooth functioning of our economy? Isn't it important then that the First Amendment rights of these protesters be "balanced" (read, "restricted") against the need to maintain interstate commerce, the lifeblood of the nation?
We don't think that's exactly the kind of "Living Constitution" today's liberals have in mind but, absent a return to originalism, this, or something like it, could well end up as exactly what they get.
Liberals must keep it in their minds that a "Living Constitution" only lives for liberals when liberals are in power. However it will do the same for conservatives should they ever rule the roost. Looked at from this perspective, for both conservatives and liberals, the idea of a Living Constitution is really quite dangerous.
Our Constitution restricts the power of each of the branches of government, including the courts. In the case of the judiciary the mechanism that restricts them is the need to respect the original meaning of the Constitution and of the laws that the courts are called upon to interpret. It is a danger of the Living Constitution that it allows the courts to ignore original intent and by doing so to set the boundaries of their own powers.
The Constitution is a LEGAL document...not a growing baby. But, without a Living Constitution the Constitution can't adapt to a changing world, can it?
Nonsense.
The Founders knew full well that over time there needed to be room for our controlling documents to adapt. So they specifically provided for an amendment process. Indeed, it is this amendment process incorporated in the obvious original intent of the Framers that puts real life into the Constitution, starting with the first ten amendments, the Bill of Rights.
Note, by the way, that the process of amending the Constitution as laid out in Article V is specifically the responsibility of legislatures at the federal and state levels and/or of state conventions.
The Constitution gives judges no role in the process. Repeat...the judges have no role.The Constitution can be inconvenient at times and there's a reason for this. It is a simple fact that the Constitution was designed to prevent the State from being that which coerces the individual.
We can feel comfortable and safe if we live under the protection of our Constitution --- but only as long as it is not a "Living Constitution"
