Unconfigured Ad Widget

Collapse

Common law and the living constitution

Collapse
X
 
  • Time
  • Show
Clear All
new posts
  • Scarecrow Repair
    Senior Member
    • May 2006
    • 2425

    Common law and the living constitution

    (Please, all you who think the living constitution is a communist plot and activist judges are traitors, go piss in your own thread. I am not interested in rants. I am trying to understand something here.)

    As I understand it, common law treats legislative statutes as mere guidance, with details worked out over years of trials and appeals, with judges writing the actual nuanced law. The reasoning is that legislators cannot anticipate every possible situation, so practical useful law requires the flexibility of trial and error.

    There's a certain practical logic to that. Bridges and buildings aren't designed from scratch, but by experienced engineers using practical books full of tables and equations worked out over the ages by trial and error. Every exploding steam boiler led to new standards for materials and construction. Building codes are more the result of fires and earthquakes showing what worked and didn't than theoretical studies.

    Is this where the idea of a living constitution came from, that the constitution is merely the theoretical framework, just as statues from the legislature are rough and incomplete, and that it is up to judges, as always, to write the real practical standards thru day to day trials and appeals?
    Mention the Deacons for Defense and Justice and make both left and right wingnuts squirm
  • #2
    PhantomII
    Member
    • May 2010
    • 337

    You could be right. Politicians and judges are for the most part lawyers. Their background is in common law and in the interpretation of those laws. If the law doesn't fit the current situation, it must be interpreted in whatever way necessary to make it applicable, or deem that it doesn't apply at all.

    However.

    The U.S. Constitution is not law.

    It's a covenant from the American People empowering a central government to do certain enumerated things, requiring them to do some others, and expressly forbidding them from doing anything not specifically enumerated.

    To allow the government to interpret what their powers are, and to alter that interpretation as it suit them, would make a travesty of the whole thing.

    Unfortunately however, that's exactly what they've done and that's one of the reasons this country is in such a mess.
    Last edited by PhantomII; 12-24-2010, 10:52 AM.
    Evil Roy Slade

    Comment

    • #3
      Don29palms
      Senior Member
      • Jun 2010
      • 1829

      The law is black and white and not gray. Because judges follow their own rules and don't follow the law it has been left up to interpretation and become gray.
      Using gun control to stop crime is like trying to put out a fire with gasoline!
      You don't have to get permission to exercise a RIGHT. If you have to get permission or can be told no by the government it is no longer a right. IT IS A PRIVILEGE!
      AR-15 ASSEMBLY CHECK LIST FOR BUILDERS

      Comment

      • #4
        Scarecrow Repair
        Senior Member
        • May 2006
        • 2425

        Originally posted by Don29palms
        The law is black and white and not gray. Because judges follow their own rules and don't follow the law it has been left up to interpretation and become gray.
        A. You're wrong, common law is not black and white. It's that legacy which I am trying to understand.

        B. What part of "I am not interested in rants" was gray to you?

        C. If you have that much trouble understanding something so simple, how can you complain about judges screwing up something much more complex?
        Mention the Deacons for Defense and Justice and make both left and right wingnuts squirm

        Comment

        • #5
          BobB35
          Senior Member
          • Nov 2008
          • 782

          Originally posted by Scarecrow Repair
          A. You're wrong, common law is not black and white. It's that legacy which I am trying to understand.

          B. What part of "I am not interested in rants" was gray to you?

          C. If you have that much trouble understanding something so simple, how can you complain about judges screwing up something much more complex?
          Dude chill,

          English common law predates the Constitution and was based on traveling Kings magistrates making up the law and passing judgments as they moved through an area. When the LAW was codified and written down, common law was looked to for a basis, but the LAW as codified was supposed to be understandable by all and not open to interpretation.

          The Constitution on the other hand was not LAW is was the limitation set on the Federal Govt by the states as to enumerated powers and then the 10th amendment reserved the rest to the states.

          If you want a discussion of Common law don't look to the Constitution, Look to the individual Penal Codes of all 50 states. Anything other than that is pointless.

          Comment

          • #6
            vantec08
            Veteran Member
            • Sep 2009
            • 3795

            Originally posted by Scarecrow Repair
            (Please, all you who think the living constitution is a communist plot and activist judges are traitors, go piss in your own thread. I am not interested in rants. I am trying to understand something here.)

            As I understand it, common law treats legislative statutes as mere guidance, with details worked out over years of trials and appeals, with judges writing the actual nuanced law. The reasoning is that legislators cannot anticipate every possible situation, so practical useful law requires the flexibility of trial and error.

            There's a certain practical logic to that. Bridges and buildings aren't designed from scratch, but by experienced engineers using practical books full of tables and equations worked out over the ages by trial and error. Every exploding steam boiler led to new standards for materials and construction. Building codes are more the result of fires and earthquakes showing what worked and didn't than theoretical studies.

            Is this where the idea of a living constitution came from, that the constitution is merely the theoretical framework, just as statues from the legislature are rough and incomplete, and that it is up to judges, as always, to write the real practical standards thru day to day trials and appeals?


            where does the Constitution define itself as "living" or "dynamic"?

            Comment

            • #7
              Marcus Cicero
              Junior Member
              • Dec 2010
              • 94

              Originally posted by Scarecrow Repair

              Is this where the idea of a living constitution came from, that the constitution is merely the theoretical framework, just as statues from the legislature are rough and incomplete, and that it is up to judges, as always, to write the real practical standards thru day to day trials and appeals?

              To answer your specific query: NO, the United States Constitution was not set up to be "merely a theoretical framework." where "it is up to judges.... to write the real practical standards" addressing said law.

              Don't take my word for it. Read what these men discussed while they were drafting the Constitution behind closed doors. Read what Jay, Hamilton, and Madison wrote in what we call the Federalist Papers.

              The Constitution was meant to be the foundation; the bedrock of our system of government regarding the states and the federal government.

              That system was not meant to be changed lightly as evidenced by the methods they left for such change to transpire.

              Remember the Constitution itself reads in Article VI:
              This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
              The idea that the US Constitution may be changed via the Judiciary; that is to say the words may be redefined or reinterpreted away from their original and obvious meanings, came about when certain individuals wanted to fundamentally change the United States Constitution and they lacked to votes to do so in the Constitutionally prescribed manner.

              The idea that stare decisis matters more than the actual text of the Constitution is a product of those people and is the primary application of the origin of what we call the "living" Constitution. That is to say, get the requisite courts to rule the Constitution says X when it clearly says Y and then bind the hands of all other jurists to rule in accordance with the patently incorrect ruling rather than address the Constitution itself.

              That is the system many have been pushing for a very long time now. Once you get that system of government running you have made the Judiciary the supreme law of the land rather than the Constitution and you have made the Legislature and the States servient to the Judiciary.

              That was not the intent of the Judiciary and that was certainly not the intent of the Constitution.

              If you want to learn about the true purpose of the Constitution, which solidifies Madison and Hamilton in the Federalist papers, I suggest you read Madison's notes on the Constitutional convention.

              Read what the men who actually wrote that document said to one another as they debated each other over how to create a Federal government strong enough to protect the states from one another and yet weak enough to keep from engulfing the states and usurping their power.

              You can find good reading on this subject here.

              Comment

              • #8
                Uriah02
                Veteran Member
                • Sep 2009
                • 3149

                Originally posted by Scarecrow Repair
                As I understand it, common law treats legislative statutes as mere guidance, with details worked out over years of trials and appeals, with judges writing the actual nuanced law. The reasoning is that legislators cannot anticipate every possible situation, so practical useful law requires the flexibility of trial and error.
                Call me an absolutist but one reason I reject "common law" or "living document" is because I think it is a mask for which those presently in power simply want to attach to the framework of our country so they don't have to follow it. The frame is the most basic layer, where it all starts or fails. It is one thing to add different layers, but to simply claim "it is a living document" negates the imperativeness of the Constitution being a frame. You don't replace the foundation without first demolishing the building it stands upon. The flexibility of trial and error is the process by which we have ammendments.

                Originally posted by Scarecrow Repair
                Bridges and buildings aren't designed from scratch, but by experienced engineers using practical books full of tables and equations worked out over the ages by trial and error. Building codes are more the result of fires and earthquakes showing what worked and didn't than theoretical studies.
                Those tables and equations are based on empircal evidence opposed to political theory which is based more on one's belief of "the purpose of government".

                Originally posted by Scarecrow Repair
                Is this where the idea of a living constitution came from, that the constitution is merely the theoretical framework, just as statues from the legislature are rough and incomplete, and that it is up to judges, as always, to write the real practical standards thru day to day trials and appeals?
                Whenever I hear someone mention what is theoretical it is almost always in a context of them wanting to go against that said theory. We are not talking about a theory by scientific definition that has passed through the scientific meathod, we talking about someone's hypothesis or desire. It is easy logic, if you want to undermine a system question its foundation, if the foundation is called into question, the whole of the structure can be changed. Even if that change involves a pile of rubble.
                sigpic
                OIF 07-09 Veteran
                NRA Endowment Member, CRPA Life Member

                Comment

                • #9
                  Cokebottle
                  Seņor Member
                  CGN Contributor - Lifetime
                  • Oct 2009
                  • 32373

                  Originally posted by Scarecrow Repair
                  B. What part of "I am not interested in rants" was gray to you?

                  C. If you have that much trouble understanding something so simple, how can you complain about judges screwing up something much more complex?
                  So anyone who disagrees with your position is ranting and incapable of understanding something simple?


                  When the law becomes grey, it is impossible to know when you are or are not breaking the law.
                  - Rich

                  Originally posted by dantodd
                  A just government will not be overthrown by force or violence because the people have no incentive to overthrow a just government. If a small minority of people attempt such an insurrection to grab power and enslave the people, the RKBA of the whole is our insurance against their success.

                  Comment

                  • #10
                    choprzrul
                    Calguns Addict
                    • Oct 2009
                    • 6541

                    IMHO, the constitution is a living document in as much as it contains a mechanism whereby the document can be changed. The problem is, that mechanism is being circumvented by lawmakers and the judicial branch.

                    This will continue to be the status quo until We The People demand that the proper process and original intent of the document be followed.

                    Comment

                    • #11
                      Dreaded Claymore
                      Veteran Member
                      • May 2010
                      • 3231

                      Originally posted by choprzrul
                      IMHO, the constitution is a living document in as much as it contains a mechanism whereby the document can be changed. The problem is, that mechanism is being circumvented by lawmakers and the judicial branch.

                      This will continue to be the status quo until We The People demand that the proper process and original intent of the document be followed.
                      I always figured that this is what people meant by "living Constitution." I can't really think of any other possible way for the Constitution to be "living" (that is, changing). When I heard this phrase, I always figured it meant something like "We can ban slavery even if the Framers wouldn't have." After all, the Framers didn't ban slavery, but it is wrong.

                      Comment

                      • #12
                        Scarecrow Repair
                        Senior Member
                        • May 2006
                        • 2425

                        I'll repose my question even more simply

                        It's very simple. Maybe I have misunderstood common law, but if so, TELL ME SO and stop the rants that add nothing to a DISCUSSION.

                        Common law, AS I UNDERSTAND IT, is not set in stone by legislatures. The fine details are massaged by cases. That is what precedent is. Whether or not any of you like it is completely beside the point.

                        Now stop and take your blood pressure. If it is rising because of your disgust with common law or anything else, STOP. Do not read further, do not post, you are off topic already. Nothing you can post will further MY discussion.

                        It is very obvious to me that the Constitution is also treated like this. Rational basis, intermediate scrutiny, strict scrutiny -- those are not in the Constitution. Amendment I says "Congress shall make no law ..." and yet there are laws against slander, libel, and falsely yelling FIRE in a crowded theater. Amendment II says "... shall not be infringed" and yet it sure is, and what is worse, it doesn't say "Congress shall not infringe", it ought to apply to the states and cities and every other government, yet it didn't until just recently. Then there is precedent at the Constitutional level, just like precedent with all other laws.

                        So the ONLY thing I am asking here is whether those who talk of a living constitution do so because of this common law background.

                        NOTHING ELSE. It's an incredibly simple question.

                        I do not want your huge font and red letter rants. If you are so incapable of rational discourse that you ignore the very first sentence of my post to piss on my question, then your answers are just as well thought out and useless.
                        Mention the Deacons for Defense and Justice and make both left and right wingnuts squirm

                        Comment

                        • #13
                          Cokebottle
                          Seņor Member
                          CGN Contributor - Lifetime
                          • Oct 2009
                          • 32373

                          You don't want a discussion. You want agreement.
                          - Rich

                          Originally posted by dantodd
                          A just government will not be overthrown by force or violence because the people have no incentive to overthrow a just government. If a small minority of people attempt such an insurrection to grab power and enslave the people, the RKBA of the whole is our insurance against their success.

                          Comment

                          • #14
                            GaryV
                            Senior Member
                            • Apr 2009
                            • 886

                            "Is this where the idea of a living constitution came from, that the constitution is merely the theoretical framework, just as statues from the legislature are rough and incomplete, and that it is up to judges, as always, to write the real practical standards thru day to day trials and appeals?"

                            While it is an interesting conjecture, it's not where the idea comes from. It's not you understanding of common law that is incorrect, it's your belief that common law is the source of the theory. The living constitution idea grows out of the moral system of Utilitarianism, the philosophy that morality is defined by whatever particular actions increase overall happiness in any given instance, and not by a rigid set of moral rules. Adherents of this system are concerned not with a preconceived (and codified) judgement of the morality of an action, but only with its consequences. When applied to constitutional law, then, the Constitution itself is only a rough set of guidelines, and its actual applicability can only be determined by predicting the outcome of following it either closely or loosely (or not at all).

                            The problem is that the Founding Fathers were not adherents of this moral philosophy, but were mostly believers in the natural law system of morality, which holds that certain "natural laws" are the basis of all morality, and that the net result of an action is irrelevant, so long as the action itself, and the intent behind it, follow a codified set of rules. So the Constitution was not meant to be anything other than such a hard-and-fast set of rules.

                            The problem with believing in the "living constitution" idea is that it makes the process of amendment irrelevant. While they meant the Constitution to be a rigid set of rules, they understood that it might need some tweaking, but they put that power in the hands of the people, not the judiciary. If the Founders had wished the Constitution to be tweaked and fine-tuned by the judiciary instead of the people, why would they have included the process of amendment in the first place? It would be redundant, and, as we can see with the history of the 14th Amendment and how the judiciary has twisted the will of the people in relation to it, worthless. If judges have the power to interpret the Constitution any way they see fit to allow for what they believe will be favorable consequences, then even as bold a statement as to how the people wish their nation to function as the 14th Amendment is can simply be swept aside by 5 political appointees.
                            Last edited by GaryV; 12-24-2010, 10:58 PM.

                            Comment

                            • #15
                              Subotai
                              I need a LIFE!!
                              • Jun 2010
                              • 11289

                              First hater of communists and activist judges in the common law thread!
                              RKBA Clock: soap box, ballot box, jury box, cartridge box (Say When!)
                              Free Vespuchia!

                              Comment

                              Working...
                              UA-8071174-1