Talk:Living Constitution
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Mis-Characterizing Scalia
[edit]QUOTE "The idea of a Living Constitution was often characterized by Justice Scalia and others as inherently disregarding Constitutional language, suggesting that one should not simply read and apply the constitutional text." The first part is correct. Justice Scalia correctly says that proponents of this living Constitution crap disregard the written text in favor of an interpretation so broad as to extend far, far beyond the clear meaning of the words on the page. A prime example being Kello V New London where the liberal "living Constitution" majority erases the distinction between what the Founders intended between the terms public use and private use. The second part of that sentence "suggesting that one should not simply read and apply the constitutional text" makes no sence. The problem with article is it doesn't provide both sides. It is too slanted towards the so-called "living Constitution" side. Lets clean up this smelly dogpile. Thanks for listening. Peace Out! --2600:6C65:747F:CD3F:9C69:3B56:DDFF:31B7 (talk) 13:05, 24 February 2019 (UTC)
- You misread the article text. (Which could have been written in a clearer manner; I interpreted it the same way that you did at first glance, and had to spend a few seconds working out the meaning in my head). The last part of that sentence is meant to indicate that that is what Scalia said the other side was suggesting, not that that was what Scalia himself was suggesting. (Scalia was a hypocrite, though, and every bit as guilty of the radical judicial activism that he railed against if it were left wing, but participated in if it were right wing, ala, just to name a couple, Citizens United, Bush v. Gore...2600:1702:4960:1DE0:89E2:777A:FA44:21A4 (talk) 07:20, 2 November 2021 (UTC)
Organicism
[edit]Professor Ackerman has a well written explanation of the background regarding the "living constitution", particularly as it pertains to Woodrow Wilson's "organic" point of view of the constitution. Ackerman notes that Wilson was quite determined to put a stop to people fixating on the Constitution as a "Newtonian" machine and instead come to recognize its "Darwinian", organic properties. Particularly on pages 1793 and 1794. [1] Progressingamerica (talk) 18:40, 15 October 2017 (UTC)
From "Unamendable" Constitution to Organicism
[edit]Historian Richard Hofstadter notes in his book "Progressive Historians" (pp. 305-306)[2] that the "unamendable Constitution" was a topic for consideration during the progressive era, particularly by Frank Johnson Goodnow, who was at one point the President of Johns Hopkins University. Hofstadter cites several and quotes Goodnow, and then writes:
Seeing constitutional law entirely subordinated to the demands of defenders of the status quo, and finding the United States almost alone among modern nations in being denied the possibility of social change because of its judicial institutions, Goodnow was trying to find a way to persuade the courts to take a more liberal view of constitutional interpretation and adopt a moderate, flexible doctrine of constitutional law that could be reconciled with progress.
Goodnow, like many other progressives in the progressive era,(Wilson, Weyl, Beard, and others) believed the Constitution to be unamendable. The Progressive Party Platform of 1912 even contains an entry(one of the first) promising an easier path to amendment.
This repeated frustration led the progressives to formulate the doctrine of the living and breathing constitution, meaning it would be less Newtonian and more Darwinian. Progressingamerica (talk) 23:06, 23 April 2018 (UTC)
United States centric
[edit]This article is obviously focused on the United States. Should we add the Globalize warning, the same as in the Originalism article? {{Globalize|article|USA|2name=the United States|date=December 2020}} Mateussf (talk) 13:56, 11 January 2021 (UTC)
- To my knowledge, the term "Living Constitution" is used only in reference to the federal Constitution of the United States. The similar topic in Canadian constitutionalism is known as Living tree doctrine, and already has a wikipedia page. The like method of interpretation of the European Court of Human Rights is known as Living instrument doctrine, and already has its own wikipedia page. Thus, I believe that other similar methods of interpreting legal documents are 1), commonly known as something besides "Living Constition", per Wikipedia:COMMONNAME, and 2), already have their own wikipedia pages, rendering any info about them here probably (but not always) unnecessary.
- I concede, it may not be the case that all types of alternative interpretation of legal documents are included to my knowledge, and that some other country or document may use the term "Living Constitution" in their method of constitutional interpretation, but I maintain that is unlikely.
- Therefore, I do not believe that the Globalize warning is necessary on this page.