The Instigator
CiRrK
Con (against)
Losing
0 Points
The Contender
ExNihilo
Pro (for)
Winning
39 Points

The U.S. Constitution is a "living" document

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Post Voting Period
The voting period for this debate has ended.
after 6 votes the winner is...
ExNihilo
Voting Style: Open Point System: 7 Point
Started: 5/23/2011 Category: Politics
Updated: 6 years ago Status: Post Voting Period
Viewed: 5,008 times Debate No: 16647
Debate Rounds (4)
Comments (13)
Votes (6)

 

CiRrK

Con

Resolved: The U.S. Constitution is a "living" document

==Definitions==

1 U.S. Constitution does indeed refer to none other than the US Constitution. Simple.

2. "living" document: term referring to a philosophy of judicial interpretation of the Constitution that promotes the view that the Constitution is dependent upon the judiciary's opinion of it at a specific time and place in history. This sub-divides into loose interpretation and judicial activism

==Rules==

1. No semantics

2. Drops are concessions

3. Forfeiting will result in a loss of all 7 pts

4. No new arguments can be brought up in the last speech

5. Reciprocal Burden of Proof

*This round will be for acceptance. Argumentation will start Rd.2*
ExNihilo

Pro

*This round will be for acceptance. Argumentation will start Rd.2*
^
I will wait for you to post your argument then

I accept both definitions, however, I reserve the right to question your application of them.
Debate Round No. 1
CiRrK

Con

I negate: The Constitution is a "living" document

Alternative: Original Methodology

This interpretation of the Constitution expounds on the notion of original intent. It argues that:

1) We need to evaluate the intent and meaning of the Constitution

BUT

2) Evaluate the rules and limitations that would have guided or restrained the Framers

C1: Legal Analysis

1. The phrase "Supreme Law of the Land" is used explicitly within the Constitution itself. In context of its usage and analyzing the rules limitation tells us that this phrase makes the Constitution as a legal document separate from the enactors and future legislators. The context of the word supreme implies that the Constitution is above and for the most part wholly separate from the political process itself. It is what guides the political and legal process and is thus not bound by the fickle interpretations of judges and legislators.

2. The 9th and 10th Amendment constrains the government from stepping outside its bounds in interpretation. Essentially the 9th Amendment ensures that the government's interpretation does not infringe on the enumeration of rights, and the 10th Amendment protects against Federal breach of State rights and individual rights. A living document interpretation essentially makes these 2 Amendments null and void since it would place all interpretative power within the hands of the judicial branch.

3. Separation of Powers. The Constitution in Article 1: Section 1, 8 and 9, the government is strictly constrained by the separation of powers between the legislative, executive and judicial branches. Accepting the living document interpretation makes these sections of the Constitution null and void because it would place essentially all power within the hands of the Judicial Branch, since it would allow that branch to determine what rules applies to it, what rules apply to the other branches, and what rules apply to the people.

4. Power of the Judiciary. The Constitution heavily limited the power of the judiciary. Textually the original constitution outlined that Courts would be established and would be bound by the Constitution. This tells us that the living document interpretation is not the appropriate form of interpretation because it assumes that there is an arbiter on the situation, which would be the judiciary. But the judiciary since the beginning was constrained by the Constitution. It was only until Marbury vs. Madison that the Judiciary took the role of interpreter. But even in this legal precedent the notion of judicial review was one of reviewing the laws as they were, and not based on opinion and activism of the Court.

5. Amendment and Ratification Processes. The Constitution has clearly outlined a process for changing the Constitution – the Amendment process. Since the Framers knew changes would eventually have to take place, they created a process which gave power to the States, the people and Congress. This is a good divide of internal power to determine amending the Constitution. If the living document interpretation was indeed correct then the Framers would have laid the power of change to the judicial branch.

6. Purpose. The reason for the Constitution is to protect the populous against potential tyranny, soft or hard tyranny. Giving a branch of the government to determine how the Constitution ought to operate and how it ought to be enacted opens the floodgates for governmental tyranny. The purpose was to have a document that entrenched certain norms that could not be interpreted by the government, unless a supermajority and the US people wanted to change it. The Conmsitution offers both negative and positive rights for the US populous, something that needs to be a norm, not left up to simple judicial activism. Which leads to C2

C2: Supermajoritarianism Advantage

The Constitution as a legal document of supermajoritarianism and "entrenchment of norms", offer immense benefits for the U.S. populous. So, my alternative doesnt simply offer normative proof for its desirability, but also consequential proof for its desirability.

1. Entrenching norms, through say the Constitution, forms a very strong bond of allegiance for those norms. The Constitution utilizes supermajoritarianism as the check against undesirable norms. This ensures that only norms which have heavy consensus are allowed to be entrenched. The benefit from this is that the notion of protection against tyranny is heavily entrenched within US society. Moreover, keeping the supermajoritarian process for the Constitution ensures that the Constitution is not skewed for political expediency at the expense of the general populous.

2. The Constitution itself was a product of supermajoritarianism. First, the constitutional convention had to be approved by the super-majority of States. Second, the Constitution itself had to be ratified by 9 out of the 13 colonies. Due to this fact, the Nationalist bloc conceded its majority hold and gave us Federalism. This shows that the supermajoritarian process prevents even tyranny of the majority.

3. As mentioned above, the amendment process is a supermajoritarian process. It is necessary that 3/4 of the State legislators ratify the Amendment, and then it must be approved by the supermajority of Congress.

3. Original Methods is necessary to preserve supermajoritarianism.

A) The judicial branch is highly limited. In comparison, the Constitutional process involves legislators throughout the entire United States. This is important because the constitutional process involves the supermajority of people throughout the US, thus maximizing opinion.

B) The demographic of justices are highly limited. The lot of justice are chosen from a narrow group of individuals - upper-middle to upper class, and white males who were lawyers who have worked up the judicial latter. The constitutional process involves an entire range of demographics and individuals.

C) The judicial branch is simple majority. The constitutional process is supermjoritarian but the judicial system is by simple majority. In most cases today, the Supreme Court rules by a 5-4 decision. This system is way to open for abuse, whereas the constitutional process isnt.

Thus, embracing the living document approach to the Constitution hands ultimate power to a branch of government that wasnt designed to wield such power and which is a much less than a diverse system. Accepting judicial activism destroys the notion of supermajoritarianism which was specifically designed to be the main process for determining constitutionality. As such, it is an implied imperative that the judicial branch simply follows an originialist method form of interpretation.
ExNihilo

Pro

C1: Legal analysis
A2: 1. The biggest error in this argument is the last sentence since it would necessarily mean that the constitution cannot be "interpreted." The Constitution cannot interpret itself (its not ‘living' in the literal sense) and will therefore require interpretation whether we are to be strict constructionists or ‘living document' advocates. If judges are not the ones who are charged with doing the interpreting, that necessarily means that the president and congress have ubiquitous authority to do so, which leads to abuse as was the case prior to Marbury v Madison. Even if there are judicial activists, they will always be better than political activists since they have some semblance of legal and judicial authority.
A2: 2.
a) Turn: Interpretation by judges is the best way to ensure that people have rights that are not expressly written into the constitution, which is what the 9th Amendment tries to protect. Otherwise Congress and the President would be able to infringe on these rights since the constitution is vague. Thus, the constitution must be interpreted by the Supreme Court and its inferiors
b) The statement "since it would place all interpretive power within the hands of the judicial branch" is not a warrant for "a living document interpretation makes these 2 amendments null and void." Who else would interpret the amendments, the ninth being rather vague and therefore in need of interpretation, which the court did in Griswold v Connecticut. It certainly was not the intent of the founders that the constitution be interpreted by the executive and legislative branches

A2: 3. This is just not true. There are checks on the judicial branch. (1) The president nominates federal and Supreme Court judges. (2) The Senate approves judges. (3) Congress can investigate wrongdoing. (4) Congress can impeach judges. (5) Congress can overturn decisions with constitutional amendments. (6) Congress has the authority to create lower courts. (7) Congress can alter the size of the Supreme Court

A2: 4. This is just blatant contradiction. If the constitution established federal courts like the Supreme Court, if not to interpret the constitution then what was its task? The fact that the Supreme Court held the Marbury case is evidence that it was the conventional wisdom that the court would settle disputes and interpret the constitution. The question was whether the court had ANY AUTHORITY to enforce its rulings, which the constitution did not establish. The Court was trying to protect the constitution, but that could only happened if it had the ability to make binding decisions, and that is only possible with judicial review. The third article grants that the High Court is the last appellate court which gives reason to think that it is the ruling on authority on matters of constitution since the appeals are questions of (un)constitutional interpretation

A2: 5. Contradiction. This contradicts your Separation of Powers argument. The reason the founders gave this power to Congress and to the states was a check on the court, which is not something I have to oppose as a person who thinks the constitution is living. Also, Turn: This proves the constitution is a living document, since the founders provided a mechanism by which the constitution can be changed to go with the times (slavery being an example). If the constitution were dead in time, there would be no change mechanism. In fact, the court only has the authority to rule on what the constitution says at the time they make a decision. Thus, your point actually warrants the idea that the founders recognized that a living document was necessary, the court merely acts to interpret those gray areas

A2: 6. This is answered by my arguments about how there are plenty of checks on the court. That is how tyranny is solved. Either way, TURN: Without an independent judiciary with the authority of judicial review, the fexecutive and legislative branches could deem decisions by the court null and void even if their actions were in contravention to the constitution. An independent judiciary is established IN ORDER TO make sure that others are not acting unconstitutionally (that's why judicial review was established)

C2:
A2: 1. If this were true then we would not have slavery. It does not follow that because most people believe and enact X, therefore X is not tyrannical. It may be the case that there is a tyranny of the majority, which is why a court is needed to bring it back to a constitutional issue instead of an opinion-based issue. Supermajoritarianism only works within the confines of the constitution, any gray areas necessarily must be interpreted by the court to prevent potential tyranny. Either way, legislators may act in contravention to the majority, so that your argument makes too many assumptions

A2: 2. This does nothing to do away with tyranny of the majority since all you need is a majority within a state to enact tyrannical policies. The means by which these issues are settles is to take it through federal courts up to the supreme court. Otherwise states interpret the rights in the constitution, which is dangerous

A2: 3. Neutral

C3:
Observation: If this falls, he gains no offense since his alternative fails to solve. Thus, even if all above arguments fail, and I win this, I win the round. However, if I win the above, and lose this, I still win the round since he assumes supermajoritarianism good in this argument. He has to win both.
A2: A) Nonetheless, opnion does not overrule the constitution and that is why we need the courts to interpret it and shoot down unconstitutional mandates based on opinion.

A2: B) This is just a flaw with the constitution then since the power is on the president and congress to nominate and confirm justices and judges. People elect the president and therefore have an indirect hand in the nomination process. Moreover, there is a progression of demographic diversity in courts. There is one African American on the court, there are none in the senate.

A2: C) The House of Representatives is mostly by simple majorities. The Senate can overcome filibuster through reconciliation processes so that only 51 votes are needed. If it is bad that the court is simple majority, this argument is non-unique. Moreover, TURN: Simple Majority on a court is good, since if the standard were 7 of 9, or 9 of 9, nothing would be interpreted which means we would be in judicial limbo as to what is constitutional or not.

CASE:
1. Pragmatism. If the constitution was not meant to be interpreted through the times then, necessarily, there would have to be massive amounts of amendment processes which just are not viable given our polarized politics. Thus, if the constitution was vague about something immoral or about something to do with rights, it would be extremely hard to amend it constantly.

2. Self-referential incoherence. My opponents position refutes itself since the claim "we should only adhere to what is in the constitution" refutes itself since strict-constructionism AND the claim that the constitution is not itself living is nowhere to be found in the constitution.

3. Interpretation. If the founders wanted the constitution to be frozen in time they would have made it explicitly clear that only amendments to the constitution would be the mechanism of INTERPRETATION. Since this is not found in the constitution, it gives a warrant for the claim that the constitution is living.

4. The framers provided various methods by which the Constitution and its laws could be modified as society grew and changed. That is why the United States Constitution is known as a "living constitution," one which can adapt and be flexible as necessary. There are three ways in which the Constitution is a "living" document: the formal amendment process; the informal amendment process; and custom, usage, and tradition." [1]

[1] http://library.thinkquest.org...
Debate Round No. 2
CiRrK

Con

CiRrK forfeited this round.
ExNihilo

Pro

Sorry it had to end like this. I would gladly accept a rematch.

Please extend.
Debate Round No. 3
CiRrK

Con

Vote Pro!!
ExNihilo

Pro

Thakn you
Debate Round No. 4
13 comments have been posted on this debate. Showing 1 through 10 records.
Posted by CiRrK 6 years ago
CiRrK
Nah, dont worry bout it. My mistake in creating a debate right within the time span I was going to be at CFLs.
Posted by ExNihilo 6 years ago
ExNihilo
Sorry it had to end like this. I will gladly reaccept another if you like.
Posted by Merda 6 years ago
Merda
Serk's first loss!
Posted by CiRrK 6 years ago
CiRrK
Damn, judging took more time than I thought. Srry dude. Congrats! As per rules u win.
Posted by ExNihilo 6 years ago
ExNihilo
I typed up the argument quickly. Please excuse any grammatical errors.
Posted by ExNihilo 6 years ago
ExNihilo
Have fun judging. We don't do NCFL, but it would've been cool to discuss it in person.
Posted by CiRrK 6 years ago
CiRrK
Alright cool. Hopefully Ill get my response in while im judging at the NCFL tournament.
Posted by ExNihilo 6 years ago
ExNihilo
I will post soon. Finals.
Posted by CiRrK 6 years ago
CiRrK
Well, it should be a good debate, even though I would have preferred debating someone who actually believes in judicial activism
Posted by Contradiction 6 years ago
Contradiction
I was worried there for a second :P
6 votes have been placed for this debate. Showing 1 through 6 records.
Vote Placed by Dimmitri.C 6 years ago
Dimmitri.C
CiRrKExNihiloTied
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Total points awarded:07 
Reasons for voting decision: Forfeit and vote for pro!
Vote Placed by BangBang-Coconut 6 years ago
BangBang-Coconut
CiRrKExNihiloTied
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Total points awarded:07 
Reasons for voting decision: Oh my goodness :O Cirrk finally lost a round (well forfeit but...)
Vote Placed by BennyW 6 years ago
BennyW
CiRrKExNihiloTied
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Reasons for voting decision: Forfeit and vote for Pro. I thought this would have made a good debate.
Vote Placed by Ore_Ele 6 years ago
Ore_Ele
CiRrKExNihiloTied
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Total points awarded:07 
Reasons for voting decision: Sorry CiRrK. Hopefully there is a rematch as this was a good debate. Anyway, good to see that Con had the honor to accept the loss via forfeit.
Vote Placed by BlackVoid 6 years ago
BlackVoid
CiRrKExNihiloTied
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Reasons for voting decision: Rules. Though pro did have an impressive response.
Vote Placed by Grape 6 years ago
Grape
CiRrKExNihiloTied
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Reasons for voting decision: Vote for Pro as per rules. CiRrk had a good argument and it's too bad to see him go down this way.