The Living Word

George W. Bush is not Lord. The Declaration of Independence is not an infallible guide to Christian faith and practice. Nor is the U.S. Constitution, nor the U.N. Universal Declaration on Human Rights. "Original intent" of America's founders is not the hermeneutical key that will guarantee national righteousness. The American flag is not the Cross. The Pledge of Allegiance is not the Creed. "God Bless America" is not the Doxology.

Sometimes one needs to state the obvious—especially at times when it's less and less obvious.

The above is from an editorial in Christianity Today.

It's remarkable not because of what it says, but because of who is saying it. CT is the journal of record for the mainstream evangelical establishment. The editorial goes on to criticize recent comments from Pastor Ted Haggard, whom we met earlier, and from Tony Perkins of the Family Research Council. It also includes this belated, but very welcome, dismissal of the "Wallbuilders" crowd:

And for some time now, we've been hearing from David Barton, Peter Marshall, and James Kennedy, among others, about "renewing the vision of our founding fathers, as expressed in America's founding documents," and the need "to defend and implement the biblical principles on which our country was founded."

The not-so-subtle equation of America's founding with biblical Christianity has been shown time and again to be historically inaccurate. The founding was a unique combination of biblical teaching and Enlightenment rationalism, and most of the founding fathers, as historian Edwin Gaustad, among many others, has noted, were not orthodox Christians, but instead were primarily products of the Enlightenment.

Coming from the reserved elder statesmen of CT's editorial board, that's pretty much a smackdown.

Most interesting here is their critique of the blossoming cult of "original intent" among parachurch leaders of the religious right. At the FRC's "Justice Sunday" event this spring, a bevy of clergy and religious leaders, including Perkins and Kennedy, railed against any judge who dared speak of a "living Constitution."

As an example of the kind of jurisprudence they find anathema, they held up the recent Supreme Court ruling barring the execution of the developmentally disabled. That decision was based, in part, on evolving community standards, and that idea -- the evolution, or progress, or development of moral understanding -- is what these religious leaders find dangerous and terrifying. From their perspective, community standards have been devolving ever since Mt. Sinai. The idea that the Constitution, or any revered text, might be read differently over time due to evolving community standards is the very idea these folks have been fighting against for the past century.

This is simply a continuation in a new arena of the fundamentalist/modernist controversy of the early 20th century. The fundamentalist "battle for the Bible" has escalated to include the battle over another sacred text: the U.S. Constitution. The terms of this battle are exactly the same. So too is the underlying motivation. It's all about control.

A "living Constitution" threatens that control as surely as the living word of the Bible. Neither text can be allowed to be "living." They must both be killed and carefully dissected to be understood properly. They must be fixed to the lepidopterist's board and carefully catalogued. A butterfly in flight -- a living creature free and wild -- cannot be pinned down, cannot be studied, cannot be understood. Cannot be controlled.

Comments

[Brett K]

Bravo!

[bulbul]

Absolutely brilliant!

[grenadine]

thank you! i've been starving for the last five days.

these original intent-ists seem to have forgotten that the founding fathers knew the constitution would need changing from time to time: hence the amendment process.

[Jay Denari]

The fundamentalist "battle for the Bible" has escalated to include the battle over another sacred text: the U.S. Constitution.

That's exactly what scares me about them... if they succeed in linking the two documents, this country will devolve into true theocracy. The Constitution was never intended to be "sacred," and thus interpreted by the few; it was intended to be understood by everyday people.

[susan]

Of course they recognize the need for amendments. To protect Americans from warped "interpretations" that would deviate from The Way Things Should Be. You know, like that anti-gay-marriage amendment that we need.

As frustrating as I find the Anti-Dynamic Constitutioners, I also pity them a bit. The world is changing too fast for them to adapt to new questions and answers and challenges -- I guess they think that if they could reverse time and go back to "the way things were," they might eventually crawl all the way back to Eden.

[Cythraul]

I wonder how such a "sacred, immutable Constitution" perspective can be reconciled with the push to inscribe marriage as a union of one man and one woman via a Constitutional ammendment.

[Ben Allen]

What's always seemed a bit of a reductio ad absurdum of the original-intent argument is that under their reasoning reinserting an amendment can cause a significant change in the meaning of the constitution. For example, if a new amendment were to be passed, reading:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

this 28th amendment would in almost no way mean the same thing as the 5th:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Under the original-intentist view of the constitution, Congress would have to spend most of its time playing Pierre Menard instead of actually legislating.

[pharoute]

Susan: I agree, there is a terrible storm raging about them and this immutable piece of paper will save them. A big security blanket to keep the monsters in the closet. Unfortunately these man-childs (men-children?) are at the helm.

[jwhook]

It is a remarkable statement from CT. I've already sent a link to several friends who have despaired with me whether any visible evangelical leaders would ever speak to this issue. Wouldn't it have been even better last year?

I too, noted the takedown of Barton and his crowd.

Here's the odd part to me. Even most fundamentalists can't and don't take literally everything in the Bible. Not many plucked eyes and handless arms among the flock. Further they recognize (especially when it matters to them) that the pattern of meaning of the author of a Biblical statement has implications for today. A simple test of this would be whether Paul's admonition in Eph 5:18 about getting drunk with wine applies to whiskey, Mai Tais, or marijuana. I'd be surprised if many said no.

The court's application of old law in new circumstances is exactly the same.

[Darryl Pearce]

A draught of refreshing thought! I didn't know how empty was my soul until it was quenched!

...and me, I've already sent my letter-to-the-editor for this month (they've been rationing me).

...maybe they'll accept a letter for the "religious section" on Saturday?

[Shag from Brookline]

The CT editorial includes the following:

"...hermeneutical key that will guarantee national righteousness ...."

Whether calling them a "living Bible" or a "living Constitution", hermeneutics, the art of interpretation, must come into play. Otherwise we would be living in the past. With respect to the Bible, hermeneutics has been applied going way, way back in time by religious scholars. While the Constitution is much, much younger in years, times change and changes must be recognized. The past may be used as a guide but not an absolute control. After all, was God perfect in what she accomplished? Surely the Founders and Framers were not.

[Ben Martin]

Although, before anyone is too hard on the Constitutional literalists, in a week in which the Supreme Court decided to interpret the 5th Amendment as allowing local government to take land from individuals to give to businesses (disclaimer: I did not read the actual judgment), we might cut them a little slack. Granted, you don't have to have a very non-literal view of the phrase "for public use" to twist the meaning of it, but still, it seems easier in that sort of environment (and guess which justices were the ones who opposed it - the conservatives every one complains about).

[Scott]

CT is just playing "good cop" to the bad cop of Haggard and Perkins.

A "living Constitution" threatens that control as surely as the living word of the Bible. Neither text can be allowed to be "living." They must both be killed and carefully dissected to be understood properly.

The Constitution is a legally binding document. You cannot say I've agreed to live by 'it' when it can be unilaterally changed into something totally different because "times change". While we can all interpret the Bible as we feel called to do, we all cannot have separate interpretations of the Constitution, since it would ultimately involve tossing people in jail for violating laws someone else considered constitutional but he or she didn't. You don't read Genesis literallly, but do you want to legally force others not to read it literally?

The Bible talks of things too big to be explained literally by mortals. If we can't literally explain our own govt, we're screwed.

[Ray]

"While we can all interpret the Bible as we feel called to do, we all cannot have separate interpretations of the Constitution"

Isn't it the job of the Supreme Court to say _this_ is the correct interpretation of the Constitution (and the law)?

[Scott]

Isn't it the job of the Supreme Court to say _this_ is the correct interpretation of the Constitution (and the law)?

That's kinda my point. A living Constitution is different from living scripture because I can act according to my own interpretation of the New Testament, and that's my right, but if I try to act according to my interpretation of the Constitution, I might wind up in jail.

Besides, if the Constitution really changes w/ the times, what basis would the left have for complaining about the GOP trying to curtail the courts? A "living Constitution" isn't a guarantee that only the changes you personally approve of will be read into the Constitution due to who wins 51% of the votes in the last election. Conservatives have as much right to 'reinterpret' the Constitution as liberals do, and limits on govt power aren't there just for when "bad people" (i.e. Republicans) are in power.

[Andrew Cory]

Scott,
Living constitution, yes. But not cancerous, which is what the GOP seems to be going for…

[derval]

But doesn't the argument for a 'living' constitution come down to saying that the Supreme Court today can come up with a different interpretation of the constitution than the court 200 years ago? Its not saying that _anyone_ can (re)interpret the constitution, its saying that the Supreme Court's interpretation can and must be a modern reading, rather than an attempt to divine the will of the framers.

(The left-right split is incidental to the argument)

[mom de plume]

Sorry--I just have to do this---

"The London Underground is not a political movement! Aristotle was not Belgian! The primary tenet of Buddhism is not 'Every man for himself!' These are mistakes! *I looked them up!*"

A Fish Called Wanda

(Bless you, Christianity Today.)

[Dave Lartigue]

But isn't there another way to resolve this conflict? Jefferson and the Constitution might be great and all that, but they're not Jesus and the Bible. If one has to give way for the other, of course the mortals will lose.

I have no idea why the Conservative Christians even bother to give lip service to the Founding Fathers. It causes nothing but grief to them for no good reason -- how many actual Americans really give a damn? Why not just say "We’re going to make this a Christian nation, regardless of the intentions of the founding fathers. What they wanted is immaterial. They either made a Christian nation or they should have, and either way, that’s our goal. And if the Constitution disagrees at some point with the Bible, then the Constitution needs to step aside." I figure that's the next step. It's what I posted about on my blog today, partly inspired by this story.

[Jim]

There's another group that abominates the assertion that law should be subject to human legislation is usually. They usually assert the superiority of shari'a. Come to think of it, they think they have the same ancestor, so maybe it's not such a surprise.

[Jim darachmor@msn.com]

There's another group that abominates the assertion that law should be subject to human legislation is usually. They usually assert the superiority of shari'a. Come to think of it, they think they have the same ancestor, so maybe it's the "family curse".

[Scott]

Its not saying that _anyone_ can (re)interpret the constitution, its saying that the Supreme Court's interpretation can and must be a modern reading, rather than an attempt to divine the will of the framers.

When the SC can come up w/ new and novel interpretations, that's the sort of centralized decision making Protestants should be trying to get away from in terms of religion (i.e. we shouldn't give Haggard the right to say "this and only this is what the Bible says because I say so", so why blindly defer to the SC?). The Constitution, like the Bible, should be open to all (particularly if 'all' are facing jail time under laws passed under that Constitution). That can't happen if you get to play text games just to make either say what you want it to say right now.

The entire War on Drugs, the New Deal, and the Great Society all violate "the govt has these enumerated powers and no others" position clearly in the text of the Constitution. Saying otherwise isn't letting it 'live' - it's simply choosing to ignore the parts you don't like, and when the govt gets to ignore limits on its power it doesn't like, that's bad even when Democrats are in power.

The founders never considered the threat of WMD wielding terrorists, so limits on govt power that protect civil liberties must go, because times have changed and gotten more dangerous. Therefore, Bush should get what he wants. Is the Constitution that alive, or do you draw the line at changes you dislike?

[Fred]

Just to clarify, the above doesn't suggest that the Constitution and the Bible are equivalent or that they both ought to be read and interpreted the same way. It suggests, rather, that there is one wrong way of reading both. The fundies "strictly literal" intepretation of the Constitution is as idiosyncratic and unliteral as their "strictly literal" interpretation of their religious scripture.

Scott:

I realize we're going to disagree on the New Deal -- about which I'll just say I think the preamble matters -- but much of the agenda of the anti-"living Constitution" crowd is something I think we do agree on. Their biggest bugbear is the right to privacy, which they often refer to as a "myth" because it is not specifically enumerated as a right of the people in a simple, declarative sentence in the Constitution. One of my favorite comments on this comes from an exchange on "The West Wing":

SAM: In 1787, there was a sizable block of delegates who were initially opposed to the
Bill of Rights. One member of the Georgia delegation had to stay by way of opposition:
“If we list the set of rights, some fools in the future are going to claim that people
are entitled only to those rights enumerated and no longer. The framers knew...”

HARRISON: Were you just calling me a fool, Mr. Seaborn?

SAM: I wasn’t calling you a fool, sir, the brand new state of Georgia was. ...

The future is now and one of those fools is my junior senator.

[Mabus]

Ahem....

I realize my last attempt to speak at length here turned into something rather unpleasant, but this issue I have a better handle on, I think, and less pent-up emotion. So if I may speak on behalf of the "original intent" faction...

To begin with, the concept of "original intent" is not something that should be applied because a document is sacred and needs to be unchanging. It's something that applies to every document. When you read Shakespeare, you no doubt do so with a modern sensibility, understanding his culture according to your own, but if you interpret his phrases according to what they mean today you will go far astray from his meaning (if you are not simply baffled). "No, marry, I fear thee!" "Let them take it as they list." "Clubs, bills, and partisans!" Proper understanding comes from reading a document on its own terms, interpreting its words and phrases according to the meaning they had when written.

Scripture's sacred unchangingness comes from the absence of an amendment process (other than thundering voices from the sky, which are in short supply these days). The Constitution does have an amendment process, and any (or rather, most) adaptation ought to come from there, according to the will of the people and not of an elite group of justices.

There are certainly terms in the Constitution that appear to have been used to let legal standards evolve with public ones--"cruel and unusual punishment" included--but they do not run all through the document. They are limited to specific items. Moreover, it is not always clear that the courts are the best judges of public opinion on what is, for instance, "cruel and unusual" (though in some cases they are given the power to act as such anyway).

The danger of a "living Constitution" is precisely what Scott has already brought up--once the "my interpretation says" genie is out of the bottle, anyone can use it. This is the underlying reason for the increasing partisan struggle over justice nominations. There is always a limited amount of wiggle room in any document, a limited range of possible interpretations that arises from our lack of ability to read authors' minds. But that range cannot be expanded indefinitely--we cannot follow the Humpty Dumpty interpretation that words mean what we want them to mean, or what public opinion says they should mean. If the public understanding of what the law should be has truly changed that radically, then one should be able to get an amendment out of it; from our perspective, relying on the interpretive process shows the weakness, not the strength, of one's (usually liberal) case. Going to the courts means, for the most part, going over the people's head--in essence, circumventing the democratic process of majority rule. Sometimes that is necessary, to preserve the political rights of minorities, but generally not.

As for the colorful metaphor of text as butterfly--there is nothing wrong with appreciating a butterfly in flight. Scientists do it all the time. But when they want to understand a butterfly, the only way of doing so thoroughly involves dissecting it. And there the metaphor ends, because a text, unlike a living multicellular being, is not killed by dissection. If anything, it is made more alive--for, by being dissected, it more completely infects the reader. In so doing, the reader encounters the spirit of its author and, if he is willing, drinks it in. This the casual, "my-interpretation-is-the-be-all-and-end-all" reader can never do.

[Scott]

I just don't think "a living Constitution" is really living - that's the document that lies dissected on the table. It, like Haggard's Bible, means what Authority says it means, and the important parts are the parts Authority says are important. There's no point in reading either yourself, you'll just get confused, so just believe what you're told.

You can complain that religious conservatives stress chastity and ignore everything the NT says about charity because their authorities tell them to, but don't then ignore the 9th and 10th amendments (or fail to give the same consideration the 1st amendment gets) because authorities tell us to.

The Constitution should be read as strictly literal as a contract, because it's a legal document. Are Supreme Court rulings to be read literally, or can the rest of us play with them to give us the wiggle room they give themselves by reinterpreting the Constitution? Yea, Roe vs. Wade supposedly struck down abortion laws, but the decision is a living document so the state of TX has decided it doesn't mean anything in particular.

[Mabus]

Very good, Scott.

For my part, I interpret all the statements made previously to be unwavering agreement with my position. So, I suppose, I shall be back to bask in further adulation. ;)

[Scott]

The Commerce Clause is the equivalent of an evangelical's proof text - a phrase taken out of it's broader context (it was supposed to keep states from slapping tariffs on each other, not to justify arresting cancer patients) and used to justify whatever needs justifying.

[Bartleby]

About the "living" constitution: of course it can be changed. There's an amendment process for that purpose. Trouble is, there's another way in which it can be changed: by usurpation. And there's been so much usurpation that the written constitution is almost completely irrelevant to the actual operation of the central government.

Constitutional government is an interesting idea, but it hasn't worked out especially well here. When the government that is supposedly limited by a constitution takes unto itself the power of saying what that constitution's words mean, the game's over.

[Ray]

If the meaning of the Constitution and the intent of the framers was clear, obvious to all, and impossible to disagree on, then there would be no need for a Supreme Court. They exist because of the possibility of disagreement, it is their job to say which interpretation is correct. That is their function in the state. (And there's more to it than being the Guardians of the 18th Century Dictionary)

Without breaking out the ouija boards, there is no way for them to _know_ what the people who wrote the constitution meant by a phrase.* And besides, that is not the Supreme Court's job - they are not told to try to commune with long-dead spirits and ask those spirits what they meant, they are told to interpret _what was written down_. (Which is a difference with religion, I suppose. Christians read the Bible as an attempt to understand the will of God)

* I've seen arguments that the legal background that the framers were familiar with means that the Kelo judgement is probably in line with their intent

[Scott]

Without breaking out the ouija boards, there is no way for them to _know_ what the people who wrote the constitution meant by a phrase.*

It is the text of the Constitution that authorized a Supreme Court in the first place. If that text has no meaning of its own, then the SC has no basis for even being around. You can't read the phrases that authorize your favorite parts of govt to exist as literal commands and then read the phrases limiting their power as mere suggestions.

Read the LB postings if you want to see what happens when you go literal when that gets you what you want, then go 'figurative' when being literal doesn't.

[Ray]

"It is the text of the Constitution that authorized a Supreme Court in the first place"

When the Supreme Court was established, everyone agreed that it should be established. Now that it's here, it gets the job of deciding whether it should be here.

The Bible is a good example of a text with conflicting interpretations. Fred and the LBers both agree that some parts of the Bible are meant literally, and other parts are metaphor, but they disagree on which parts. A disagreement they're entitled to.

The trouble with your argument is that there is no clear and obvious interpretation that _you_ can see, but everyone else is ignoring out of sheer bloodymindedness. There are conflicting interpretations, and (most of) the people holding them think their interpretations are valid, and it's everyone else that's wrong. Enter the Supreme Court.

[j swift]

From the Christianity Today article:

"The not-so-subtle equation of America's founding with biblical Christianity has been shown time and again to be historically inaccurate. The founding was a unique combination of biblical teaching and Enlightenment rationalism, and most of the founding fathers, as historian Edwin Gaustad, among many others, has noted, were not orthodox Christians, but instead were primarily products of the Enlightenment. The Enlightenment, we should recall, has never been much of a friend of biblical Christianity.

I have attended Pastor Ted's church and he is not a stupid man. Pastor Ted and his fellow travelers' political agenda has exactly dick to do with maintaining freedom and tradition blah, blah, blah.

It is about obtaining a dominant position in our culture from which to proslytize and convert; to attack your freedom of conscience and free will. Screw em and church they rode in on.

[Scott]

When the Supreme Court was established, everyone agreed that it should be established. Now that it's here, it gets the job of deciding whether it should be here.

Everyone?!?!? Were you asleep in history class when they went over the debates about ratifying it in the first place?

As far as what power the SC has, says who? You can't claim that's because "the Constitution says so", because you've just said "there is no way for them to _know_ what the people who wrote the constitution meant by a phrase". Why should I read the parts about establishing the SC as being anymore literally binding than the 9th and 10th amendments?

Can Bush eliminate civil liberties because the founders never considered the possibility of WMD wielding terrorists, and thus "times have changed"? He and his party did win the past few elections.

[Scott]

about which I'll just say I think the preamble matters

Preambles give goals, not specifics. Giving weight to the preamble either ultimately says "anything goes" as long as it is rhetorically justified as for "the general welfare", or says that my laws, being right and thus in line w/ the general welfare, are OK, but yours, being wrong and thus only aiding the wrong people, are not. Thus my side can reinterpret the Constitution, but yours cannot, because we are good and you are bad.

Pretend I told you "because I wanted to go to Fresno, I bought a bus ticket". If you break down my door tonite, bundle me into the trunk of your car at gunpoint, then dump me in the middle of downtown Fresno, you aren't justified because I told you I wanted to go there. I wasn't giving you permission, I was explaining why I did what I chose to do (buy the bus ticket).

[Nicole J. LeBoeuf-Little]

A living Constitution is different from living scripture because I can act according to my own interpretation of the New Testament, and that's my right, but if I try to act according to my interpretation of the Constitution, I might wind up in jail.

Unfortunately, we have to watch out for those edging into power who want to send you to jail for the former action as well as for the latter.

[cjmr]

Despite the fact that I promised myself I wouldn't get into another discussion/argument with Scott...

Preambles give goals, not specifics.

Exactly. So if you want to know what the framers intentions were for the Constitution--where else would you look? Why not start with the list of goals that they considered important when erecting the legal framework in the first place? They are listed right there in the preamble:

form a more perfect union
establish justice
ensure domestic tranquility
provide for the common defense
promote the general welfare
secure the blessings of liberty

[Ray]

"Were you asleep in history class when they went over the debates about ratifying it in the first place?"

I was probably learning about the Penal Laws, or the Famine, at the time.
But it was ratified, right, even if not unanimously? And you're not arguing that that initial ratification was illegitimate (or are you?) And there was an agreement to set up a Supreme Court, as part of that ratification. So the Supreme Court is just as legitimate as the consitution - if one is valid, then the power of the other to interpret it is also valid.

If _you_ want to reject their decisions, you can, just as you can reject any of the amendments if you like, or reject the whole constitution. What'll happen if you do?
All together now - "gun-wielding government thugs will kick in my door...."

[Scott]

That ignores the question of what they considered best for "the general welfare" or 'justice', a big monstrosity of a fedgov or the limited one they actually created?

You're back to stuffing me in your trunk and dumping me in Fresno because I said I wanted to go there at some point. The general language you quote gives cover for Bush's War on Terra just as much as it does for your War on Poverty ("the common defense" and all that). Can Bush 'reinterpret' the Constitution w/ as much authority and legitimacy as you?

[Scott]

But it was ratified, right, even if not unanimously?

You said 'everyone' agreed, implying a degree of unanimity that didn't exist.

So the Supreme Court is just as legitimate as the consitution - if one is valid, then the power of the other to interpret it is also valid.

And if the Constitution is unintelligible by us cattle (since you said we can't read the Founders' minds), then the basis for the SC's power is untelligible by us cattle, so why should us cattle obey?

Or is the govt, like God, just too big for us mere mortals to comprehend or understand, and we must Just Accept its ways being beyond our ways?

[cjmr]

Can Bush 'reinterpret' the Constitution w/ as much authority and legitimacy as you?

Actually, neither of us has the authority or legitimacy to interpret (or, if you like, re-interpret) the Constitution. It is generally accepted that the Supreme Court, however, does. Even when they make decisions that we don't agree with.

And, for the record, it is not my War on Poverty. If you want to play straw-man, at least get my positions right.

[Ray]

"And if the Constitution is unintelligible by us cattle (since you said we can't read the Founders' minds)"

I feel like Hannibal Lecter in Silence of the Lambs. What happened to the cattle, Clarisse? Did the government men shoot them? And how did you feel about that?

But seriously "unable to read the author's mind" does not equal "find it completely unintelligible" (and "is not psychic" does not equal "is a cow"). Take any sufficiently long and complex piece of writing, and you will get people interpreting it differently. When people disagree about the constitution, the Supreme Court decides which interpretation is right. If you find that difficult to understand, or think it makes the Consitution meaningless as a social contract, well, you don't have to sign it.

[Scott]

Actually, neither of us has the authority or legitimacy to interpret (or, if you like, re-interpret) the Constitution. It is generally accepted that the Supreme Court, however, does. Even when they make decisions that we don't agree with.

The SC is therefore, by definition, right about what the Constitution says? They are as infallible as any Pope? If they ruled Scientology to be the national religion and Tom Cruise President for Life, we should sit down, shut up, and submit?

Why didn't the founders just write one short paragraph setting up a Supreme Court and be done with it, if everything else is to be ultimately decided by that SC? Why bother enumerating powers delegated to the fedgov and creating a Bill of Rights, if neither writing means anything other than what the SC says it means?

You would have the Founders just replace one king with nine?

If you find that difficult to understand, or think it makes the Consitution meaningless as a social contract, well, you don't have to sign it.

I didn't. By your beliefs, I couldn't, because there is nothing to sign. What I may sign today can be replaced with something totally different tomorrow w/o my consent.

[Scott]

By y'all's standards, is it even possible to create a govt w/ limited powers, or will any govt created be implied to have the power to rule on the limits of its own powers (since that govt is the representative of The People) and thus to grow at will?

[cjmr]

My post: Actually, neither of us has the authority or legitimacy to interpret (or, if you like, re-interpret) the Constitution. It is generally accepted that the Supreme Court, however, does. Even when they make decisions that we don't agree with.

Scott: The SC is therefore, by definition, right about what the Constitution says? They are as infallible as any Pope? If they ruled Scientology to be the national religion and Tom Cruise President for Life, we should sit down, shut up, and submit?

Ummm, no, that's not what I said. Recognizing the authority of a person or body to make a particular decision is not equivalent with agreeing with every decision they use their authority to make. Nor is it equivalent with saying every decision they make is the correct one.

I have very few worries that the Supreme Court would ever pervert the Constitution so far as to establish Scientology as the national religion--and there is just not way they would ever appoint Tom Cruise President for Life, unless, of course, he was running on the Republican ticket in a contested election in Florida.

But as far as the analogy goes, I think the SCOTUS is just as infallible as any Pope...not at all infallible.

[Scott]

Ummm, no, that's not what I said. Recognizing the authority of a person or body to make a particular decision is not equivalent with agreeing with every decision they use their authority to make. Nor is it equivalent with saying every decision they make is the correct one.

What do you do if they're wrong?

[cjmr]

Obviously that "not way" should be "no way". Typing too fast today.

[Ray]

"The SC is therefore, by definition, right about what the Constitution says?"

Say rather, "The interpretation of the Constitution arrived at by the Supreme Court is, by definition, the binding interpretation". The word 'right' is really open to interpretation.

"Why didn't the founders just write one short paragraph setting up a Supreme Court and be done with it, if everything else is to be ultimately decided by that SC?"

The question doesn't really make sense. What do you think the alternative is? Create a consitution that covers every possible circumstance? A constitution where every phrase is footnoted by a thousand-page volume, explaining exactly what it means? If interpretation is necessary, then its necessary.

"You would have the Founders just replace one king with nine?"

Nine kings appointed by one branch of the government, who can be impeached by another. Yes, of course, since Washington's ghost is not standing behind them, sword in hand, they could issue a ruling that says their interpretation of the constitution is that they are kings for live, and gun-wielding government agents must immediately kick everyone's door down. But
1) what legal measure do you propose to stop them doing so? A Super-Supreme Court, where appeals against Supreme Court rulings are heard? and 2)if gun-wielding government agents are ready to kick everyone's door down on the word of the Supreme Court, do you really think arguments about the original intent of the framers are the things that will stop them?

"I didn't. By your beliefs, I couldn't, because there is nothing to sign. "

I think you've misunderstood my point. The words of the constitution don't change, so whichever of us is 'right', its still signable. Its just like any contract - if you sign a contract with me, and then we discover that we have interpreted it in different ways, then we have to go to an arbitrator (which may be specified in the contract) for a ruling. In this case, the arbitrator is the Supreme Court.
(So yes, you could describe it as signing a contract with the government, where part of the same government is the arbitrator. Which might make it an unattractive contract, but its still a contract. And you don't have to sign if you don't want to - billions of people haven't)

[Scott]

"The interpretation of the Constitution arrived at by the Supreme Court is, by definition, the binding interpretation".

Based on what, the Constitution we can't figure out for ourselves?

The question doesn't really make sense. What do you think the alternative is? Create a consitution that covers every possible circumstance? A constitution where every phrase is footnoted by a thousand-page volume, explaining exactly what it means? If interpretation is necessary, then its necessary.

Why give the level of detail they did give, if those details can be tossed aside at will by any SC? You don't need to list individual circumstances to say the govt cannot do X. Just say it cannot do X, period.

Its just like any contract - if you sign a contract with me, and then we discover that we have interpreted it in different ways, then we have to go to an arbitrator (which may be specified in the contract) for a ruling. In this case, the arbitrator is the Supreme Court.

If you and I have a dispute, and I get to decide who arbitrates it, who gets to be an abritrator, and the arbitrator relies on me to get paid, then you cannot expect fair play. A dispute between me and the govt over govt power, where the govt arbitrates, is just as unfair.

if gun-wielding government agents are ready to kick everyone's door down on the word of the Supreme Court, do you really think arguments about the original intent of the framers are the things that will stop them?

The idea is to stop it before it gets to that point. If you really believe that 51% of the people who show up on election day can do whatever they want to the other 49% of the voters, and all the nonvoters, then all you have is "might makes right".

If the govt gets to decide on the limits of govt power, with at most the OK of 51% of the voters, then you guarantee oppression at some point.

[cjmr]

What do you do if they're wrong?

Shouldn't that be when they're wrong? Because I do think they are wrong, frequently. (I am, for the sake of argument assuming we are only talking about the Supreme Court here, not other decision-making authorities that apply to me like my bishop or my husband.)

Seriously, there are systems in place for amending the Constitution. Petition your Congressman to submit a Consitutional Amendment if a SCOTUS decision is so aggregious that you think the whole thing needs to be changed. If you are truly indignant about a court decision, you can actually commit a crime/sue someone/etc. and get your own case going up through the court system with the eventual goal of seeing if the Supreme Court will overturn its previous ruling, which it has on more than one occasion.

The definitions in the Constitution need to evolve. I doubt that any of us would want to go back to the days of the Founding Fathers when such things as branding, giving "blasphemers" 40 lashes with a cat-o-nine tails before hanging them anyway, or whipping "adulteresses" in the nude were not considered to be cruel and unusual punishment.

[Scott]

Seriously, there are systems in place for amending the Constitution.

You mean the same amendment processes that are inexcusably cumbersome when we 'need' social or environmental legislation that doesn't fall under the powers enumerated to the govt?

Why is it that people who want to make sweeping changes to how the Constitution is viewed can go to the SC, but those of us who would just as soon deny the fedgov power have to get amendments?

If you want a War on Drugs, New Deal or Great Society, you pass some amendments.