Should we think of the Constitution as a "living document" or should the Framers' intent control?

Question

This is a big debate in constitutional law. Some people, like Justice Scalia, think that the Constitution should be interpreted in accordance with the original intent of the drafters. Others, such as the late Justice Marshall, have been explicit that the Constitution's meaning changed as society's notions of justice and fairness change. Who has the better of the argument here?

Consider: The Framers of the 14th Amendment, which Brown v. Board of Education was based on, though separate but equal was perfectly fine, but the Court in that case nevertheless abolished separate but equal and demanded integration in spite of the original intent of the drafters of the 14th Amendment.

On the other hand, some argue that the living constitution theory gives judges nearly untrammeled discretion in determining the meaning of the Constitution. People who disagree with the right of homosexuals to engage in sodomy (Lawrence v. Texas) say the Framers did not intend to protect that conduct.

Answer 1

The problem with "original intent" is that those gentlemen are no longer around to explain that intent. So the Supremes sit, staring into the tealeaves of history for clues as to what the "Framers" really meant to say. Maybe the majority of the Framers would agree with a given result, maybe not.

Original intent also assumes that all of the "Framers" thought alike on this very question--that they all agreed that they were writing the definitive rule for the ages and that, short of constitutional amendment, our laws were to remain immutable from 1789 forward, no matter how society evolved over the years.

The Framers debated for years, both before and after the Constitution was passed into law. If we read what they left behind--books, articles, newspapers, etc.--we can see that even then they disagreed about the degree of flexibility built into the Constitution.

As they themselves didn't agree then, I don't see how we can say they do now, after they are long gone.

Answer 2

The original intent of the Founders was that it should be a living document. That's why they included the amendment procedure.

Scalia and others like him would like to impose their own personal interpretation of the intent of the drafters of the constitution -- claiming falsely that they and only they understand the original intent.

Answer 3

The framers are dead and are generally silent.

Therefore, if we're going to try to make the Consitution based on what the framers thought, we're trying to guess what dead people think.

It *MUST* be a living document.

Yes, due to their non-elective status, the Supreme Court functions as the most legislatively conservative branch of the government, yes there is the distinct possibility that a bozo can creep in.

However, ultimately we are depending on those 9 to produce the right balance between the philophy of the ages (which DOES change) and laws of the day.

Anyone who thinks they know what a dead person would say oughta have his head examined. Dead is dead.

Answer 4

to all of you that believe that the constitution is a living document,as Berry C says,then why don't you go through the process of changing the amendment to what is being addressed in the courts. I for one don't subscribe to the Supreme Court using any world court to interpret our constitution. I didn't have any say so in their laws or interpretation their of. nor does the Supreme court. We are an entity of our own,not a subsidiary of another government.

Answer 5

The Framers intended the document to be living, hence the part about amendments, and they backed it up by adding 10 amendments immediately.

Any other arguments are fallacies and canards.

Answer 6

It is a living document. The constitution was written in the time of slavery, so it can not possibly be written " for all times".

By the way, Lawrence v. Texas is not about "homosexual sodomy", it is about sodomy, period. Many heterosexuals practice sodomy regularly.

Answer 7

I'm for the Framers.

If you can not rely on the law as written, what can you rely on?

Where could you find precedent to specify your rights and obligations under the circumstances without asking a court to verify that what you belive is so is still so?

which, of course, would cripple business dealings of all sorts, including your ability to buy anything on credit [house, car, etc.]


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Answer 8

we should stik w/ our freedoms, such as speech or press, and prayer should b allowed n school