The Instigator
LiberalHoyaLawya
Pro (for)
Winning
9 Points
The Contender
Nalydmerc
Con (against)
Losing
0 Points

The U.S. Constitution should be interpreted as a living document.

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Post Voting Period
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after 2 votes the winner is...
LiberalHoyaLawya
Voting Style: Open Point System: 7 Point
Started: 11/30/2011 Category: Politics
Updated: 3 years ago Status: Post Voting Period
Viewed: 8,398 times Debate No: 19566
Debate Rounds (4)
Comments (11)
Votes (2)

 

LiberalHoyaLawya

Pro

As Pro, I will argue that the U.S. Constitution should be interpreted as a living document.

In the context of American constitutional law, describing the Constitution as a "living document" (or referring to it as a "Living Constitution") invokes the notion that the Constitution is "has relevant meaning beyond the original text and is an evolving and dynamic document that changes over time" - even without the passage of constitutional amendments. [1] Proponents of this idea believe that the views of contemporaneous society should be taken into account when interpreting key constitutional phrases.

As Pro, I will bear the burden of proof in establishing that the Constitution should be interpreted as a living document, but Con is encouraged to articulate or defend an alternative methodology of constitutional interpretation (i.e., "originalism"). As this will be a legal debate, citations to authority are allowed and encouraged. Citations to Supreme Court decisions and the text of the Constitution itself will be privileged, but citations to other persuasive authorities (i.e., the Federalist Papers, books, law review articles, etc) are also acceptable.

The other rules are as follows:
1. The debate will last four rounds, with the first round merely for acceptance.
2. For every round, each debater will have 72 hours to post their argument, and up to 8,000 characters to make their arguments.
3. The voting period will last three months.

This will be my first debate on debate.org. While this may result in some basic mistakes in formatting or debate style, I am highly familiar with the subject matter. Thanks and good luck!

[1] http://definitions.uslegal.com...
Nalydmerc

Con

I actually studied why the opposite is true in my economics class last year. I hope I will be knowledgeable enough to put up a good argument :)

First round only for acceptance, as requested. Best wishes to Pro and let the debate begin
Debate Round No. 1
LiberalHoyaLawya

Pro

The Constitution should be interpreted as a living document for two reasons: 1) the Constitution was written deliberately vague enough to change over time, and 2) interpreting the Constitution as a living document has resulted in tremendous progress for our country.

1. The Constitution was designed specifically to be a living document

Critics of the living Constitution often suggest that the original intent or meaning of specific language in the Constitution should govern its legal application unless and until any constitutional amendments are passed to change it. The profound irony of this approach to constitutional interpretation, however, is that it flunks its own test; the vast weight of historical evidence suggests that the Framers of the Constitution originally intended the meaning of the Constitution to change over time.

A. The brevity of the document

At the time of its ratification in 1788, the Constitution was only 4500 words long and fit on four (admittedly large) pages. By contrast, Congressional legislation today is typically hundreds of pages long, and usually begins with a lengthy list of terms and definitions to clarify the precise meaning of its language. If the framers of the Constitution really intended the Constitution to define the precise scope of the entire federal government and the nature of core individual rights for all of perpetuity, then one would have expected the body of the constitution to be significantly larger. Of course, attempting to draft and subsequently ratify such a detailed Constitution would have proven to be an impossible task.

A specific example from the Constitution illustrates this point. In defining the Congress’ ability to “carry into execution” its enumerated powers under Article I, Sec. 8 of the Constitution, the Framers made an editorial decision to grant Congress a wide-ranging power to pass “all laws . . . necessary and proper” for that purpose. As James Madison explained in Federalist Paper # 44, this decision was made largely for the sake of convenience:

Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect; the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too not only to the existing state of things, but to all the possible changes which futurity may produce.[1]

This, of course, was not the framer's intent. Aside from the practical obstacles in actually drafting such a document, the Framers also wanted to keep the Constitution accessible to Americans of all backgrounds. In other words, if the Framers didn’t intend for the Constitution to be a living document, we wouldn’t have a Constitution small enough to fit in our pocket.


B. The ambiguity of its language

Even more convincing evidence for the idea of a Living Constitution, however, lies in the ambiguity of its actual language. Phrases like “general Welfare,” “due process of law,” and “free speech” are some of the most important concepts at the heart of our democracy, but their actual meaning is left completely unresolved by the naked text of the Constitution. This ambiguity was deliberate. For one thing, the delegates present at the 1787 Philadelphia Convention disagreed vigorously amongst themselves about the meaning of certain language, and keeping the document as vague as possible increased the likelihood of its ratification from the 13 states.

Less cynically, however, was the fact that the Framers simply wanted to ensure that the Constitution had the flexibility to adapt to changing circumstances. When the Constitutional Convention’s Committee of Detail met together to write the first draft of the Constitution, for example, framer Edmund Randolph advised his fellow Committee members “to insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.” [2]

C. The intent of its Framers

Like Randolph and Madison, other framers have endorsed the idea of a Living Constitution. In Federalist Paper # 34, Alexander Hamilton essentially criticized an "originalist understanding" of federal power:

Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. [3]

Aside from explicit quotations, we may also infer the framer’s support for a living Constitution by the circumstances surrounding their deliberations in Philadelphia. For example, if the framers really wished for their intentions to control future interpretations of the Constitution’s text, one would expect them to have kept a detailed recording of their deliberations in Philadelphia, just like Congress compiles a “legislative history” to guide future interpretation of the statutes they pass. The framers, however, declined to keep an official record of their deliberations in Philadelphia, and kept their proceedings secret from the public. This way, they ensured that future generations would not be trapped under the weight of their "original intent."


2. A Living Constitution has made us a freer and more just country

Perhaps the best argument in favor of a Living Constitution is the simple fact that it has made our country better. The legal reasoning used in the Supreme Court's landmark decision in Brown v. Board of Education demonstrates this convincingly.

After hearing oral arguments, one Justice noted that if the case had been decided then, "the vote would have been five to four in favor of the constitutionality of segregation in the public schools." [4] Despite unanimous disgust with the practice of segregation, five of the nine Justices didn't believe it was unconstitutional under an original intent understanding of the 14th Amendment's Equal Protection Clause, because even Northern schools were racially segregated when the Amendment was passed in 1868. One Justice's law clerk concluded that "it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” [4]

Fortunately for this nation, the five waivering Justices eventually came to their senses and discarded the "original" understanding of the 14th Amendment as irrelevant. Writing for a unanimous Supreme Court, Chief Justice Earl Warren observed the following:

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.[5]

Desegregation via Brown is only one of the many indispensable products of a Living Constitution. Consider how the execution of juveniles or mentally retarded inmates is now considered "cruel and unusual punishment" under the 8th Amendment's "evolving standards of decency." Consider also the constitutional right to privacy, the right to interracial marriage, or the right to be free from warrantless searches - all of which were once unthinkable during earlier eras.


As our country continues to change for the better, so should the meaning of our Constitution.



[1] http://www.constitution.org...
[2] http://press-pubs.uchicago.edu...
[3] http://www.constitution.org...

[4] http://www.neh.gov...
[5] http://caselaw.lp.findlaw.com...

Nalydmerc

Con

Wow…For one of my first debates I've bitten off quite a bit. Nevertheless, I have readied my argument for this round.

First, concerning the shortness of the document:
The Constitution being short is not a valid argument for weather it should be considered ‘living.’ The Tenth Amendment states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In other words, the powers of the United States government are ONLY those listed in the Constitution, provided by Article V that Amendments could be added. This means that the document is short only because the powers granted to the United States government are very few in number.


Concerning ambiguity and ‘framers’ intent’:
The writers of the Constitution never intended for it to be a ‘living’ document. Let us look to James Madison’s words on the phrase “General Welfare:”

“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, country, and parish, and pay them out of their public treasury; they may take into their own hands the education of our children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.” [a]

In other words, James Madison said that if Congress can stretch the term “general welfare” to fit nearly anything, it would allow Congress to spend money on anything it pleased. (Unfortunately it seems they are throwing money at anything and everything anyway, but that is another topic) Article 1, Section 8 is meant to describe exactly what the ‘general welfare’ means, but if you consider the constitution a ‘living’ document, you could turn this to say that in modern language, ‘general welfare’ would mean that Congress would be able to make laws on anything that it would deem such.
Also concerning this, let us look to the words of Thomas Jefferson:

“The Constitution on which our Union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United Stated, at the time of it’s adoption.” [b]w

This means that the terms used in the constitution should mean what the people at the time of the Constitutions adoption thought they meant, and should not be re-interpreted through modern language. This also disproves that the writers of the constitution meant for the Constitution to be a living document.


Looking back to the implementations of the Tenth Amendment and Article V with concern as to the ambiguity:
The implementation of the Tenth Amendment combined with Article V is also an argument against a living constitution per se. There is no need for the document to be living. Allowing it to be taken out of it’s original text, or allowing anyone to re-interpret it in modern language, would allow anyone to bend the Constitution to fit his/her will. The Tenth Amendment, combined with Article V, prevents one’s attempts to, greatly or even slightly, distort the Constitution under the assumption that it is a ‘living’ document. Your reference to the Supreme Court Case regarding the 14th Amendment actually strengthens this argument. In that case, an Amendment was passed adding on to previous legislation after being approved by the Supreme Court. This goes against your describing the Constitution as having meaning beyond the original text without the addition of new amendments.

Sources:
[a]: Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia, 5 vols. (1888), 4:429.
[b]: Emphasis added. Thomas Jefferson, cited in the Freeman Institute’s American Classic Series, Thomas Jefferson (1981), pg. 65

I also used:
Erich Pratt, The Constitutional Recipe for Freedom (2010). Materials can be found at http://www.principlesoffreedom.com...

Debate Round No. 2
LiberalHoyaLawya

Pro

I thank my opponent for a well-written response. Unfortunately, he has made a number of significant historical oversights that doom his argument.

To begin with, Con attempted to explain that the Constitution was so short at the time of its ratification because it simply didn’t grant much power to the federal government. Unfortunately, history proves this argument is completely backwards.

The very first sentence of Federalist Paper # 1 makes clear why the country needed to adopt a new Constitution: the “unequivocal experience of the inefficiency of the subsisting federal government” under the Articles of Confederation (AOC). [1] Under the AOC, the federal government had no power to raise revenues, no power to regulate commerce, and no power to enforce its authority over the states. The whole purpose of enacting a new Constitution was to save the country from devolving into anarchy through the creation of a stronger national government. As Hamilton wrote in Fed. Paper #26:

The citizens of America have too much discernment to be argued into anarchy. And I am much mistaken, if experience has not wrought a deep and solemn conviction in the public mind, that greater energy of government is essential to the welfare and prosperity of the community.” (emphasis added)[2]

Con cites the text of the 10th Amendment to support his interpretation that “the powers of the United States government are ONLY those listed in the Constitution.” This is also false. The 10th Amendment merely reserves “powers not delegated to the United States by the Constitution” to the states; it does not reserve “every Power, Jurisdiction and right, which is not . . . expressly delegated to the United States,” as Article II of the AOC did. [3] In a unanimous 1819 decision which recognized the existence of implied government powers, the Supreme Court recognized the importance of this rhetorical disparity:

The men who drew and adopted [the 10th Amendment] had experienced the embarrassments resulting from the insertion of [the word “expressly”] in the [AOC], and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” [4]

As that case made emphatically clear, the Constitution was always intended as a concise grant of broad government powers.

Next, Con invokes two quotes from Madison and Jefferson to “disprove that the writers of the constitution meant for the Constitution to be a living document.” Both quotes are of dubious value in ascertaining the true intent of the framers.

Con’s Madison quote concerning the General Welfare clause was - and still remains - a minority opinion on the scope of that provision. Like most of the Federalist delegates at Philadelphia, Alexander Hamilton interpreted the phrase “general welfare” as a broad grant of plenary spending power to Congress. [5] Hamilton’s position was endorsed by President George Washington, and - since the scope of that clause was first addressed by the Supreme Court in 1937 [6]- has never been questioned by a single Supreme Court Justice.

Jefferson’s 1801 quote on Constitutional interpretation has even less value. To begin with, Thomas Jefferson wasn’t even in North American when the Constitution was written or ratified. More importantly, however, was the fact that Jefferson’s approval of the Louisiana Purchase as President in 1803 illustrates perfectly the value of a living Constitution. As a strict constructionist, Jefferson had significant doubts that he possessed the constitutional authority to acquire so much territory without an explicit constitutional amendment, but feared that waiting for the passage of a new amendment would lose him the opportunity to make the deal. His doubts notwithstanding, Jefferson made deal, telling one correspondent that “the less that is said about the constitutional difficulties, the better.” [7]

Jefferson, however, shouldn't have anguished himself over the decision. Had he simply adopted a moderately expansive view about the scope of a President's treatymaking power under an evolving Constitution (as his own Treasury Secretary suggested) [8], he wouldn't have embarrassed himself by looking like such a hypocrite. Then again, the slaveowning author of the Declaration of Independence was certainly no stranger to hypocrisy.

Speaking of race, my opponent dismisses the value of Brown v. Board of Education as evidence for why a Living Constitution is so important because the constitutional phrase it turned upon happened to come from an Amendment to the original Constitution. To be blunt, this is simply an innane argument.

When the 14th Amendment was passed in 1868, nobody from that era contemplated that the Equal Protection Clause would someday be used to eradicate racial segregation. As the Supreme Court noted in its now-infamous 1896 decision to uphold segregation in Plessy v. Ferguson, Northern schools were segregated at the time of the Amendment's passage. [8] While the 14th Amendment was being debated on the Senate floor, even the viewing galleries above were racially segregated. [9] Thus, if the Equal Protection Clause had been interpreted faithful to its framer's original intent, Brown v. Board would have been decided differently. In fact, given the unlikelihood that enough Southern states would have ever voted to ratify a new Amendment explicitly abolishing racial segregation, it is possible that we would still live in a segregated society today under an "original understanding" of the 14 Amendment. This is an inescapable conclusion that my opponent has completely dodged.

I would humbly submit that both the Lousiana Purchase and the Supreme Court's decision in Brown v. Board of Education were two of the best historical events to ever happen to the United States. Does my opponent disagree? Both would have never been possible under a more regressive interpretation the Constitution. Briefly, here are some other constitutional developments that could not have happened without a Living Constitution:

1. The "incorporation" of the Bill of Rights against state governments. [10] After all, the 1st Amendment only says "Congress shall pass no law. . . " (emphasis added).

2. Abolition of the death penalty against juveniles [11] or the mentally handicapped. [12]

3. The right to interracial marriage. [13]

4. The right to use birth control. [14]

5. The right to be free from warrantless police searches. [15]

Unless my opponent can demonstrate that the framers would have originally endorsed any of the outcomes listed above, he must at least concede that a Living Constitution has been beneficial to our country from a consequentialist perspective. I maintain that a Living Constitution is both legally and morally desireable.

Sources:

[1] http://thomas.loc.gov...
[2] http://thomas.loc.gov...
[3] http://avalon.law.yale.edu... (emphasis added)
[4] McCulloch v. Maryland, 17 U.S. 316, 406 (1819)
[5] http://press-pubs.uchicago.edu...
[6] United States v. Butler, 217 U.S. 1 (1936)
[7] David Meyer, The Constitutional Thought of Thomas Jefferson 230 (1994)
[8] Plessy v. Ferguson, 163 U.S. 537, 544 (1896)
[9] David Strauss, The Living Constitution 12 (2010)
[10] Gitlow v. New York, 268 U.S. 652 (1925)
[11] Roper v. Simmons, 543 U.S. 551 (2005)
[12] Atkins v. Virginia, 536 U.S. 304 (2002)
[13] Loving v. Virginia, 388 U.S. 1 (1967)
[14] Griswold v. Connecticut, 381 U.S. 479 (1965)
[15] Johnson v. United States, 333 U.S. 10 (1948)
Nalydmerc

Con

Nalydmerc forfeited this round.
Debate Round No. 3
LiberalHoyaLawya

Pro

Unfortunately, my opponent failed to meet his three day deadline to post an argument for Round 3. Given that he hasn't taken five minutes to explain himself or offer an apology in the comments section, I have no choice but to assume that he has conceded this debate to me. I will not waste any more of my time offering any further arguments.

If anyone else would like to debate me on this topic in the future, feel free to offer me a challenge. Until then, however, please vote for Pro as the winner of this debate. Thanks for reading.
Nalydmerc

Con

Nalydmerc forfeited this round.
Debate Round No. 4
11 comments have been posted on this debate. Showing 1 through 10 records.
Posted by logicrules 3 years ago
logicrules
Thanks Lib, wish I could avoid the re part.
Posted by Nalydmerc 3 years ago
Nalydmerc
Ah. Thanks. I'll keep that in mind :)
Posted by LiberalHoyaLawya 3 years ago
LiberalHoyaLawya
After you click on the "post my argument" button and it takes you to the text box where you write / insert your argument, there should be a tiny link just above the upper left corner of the text box called "rich text." Clicking on the rich text link should bring up a few formatting tools, where you can re-format your argument (underlining / bolding words, changing font styles, etc). Hope that helps.
Posted by logicrules 3 years ago
logicrules
Is the a way around that formatting issue, I have the same problem, among many.
Posted by Nalydmerc 3 years ago
Nalydmerc
Hm. Apparently copying and pasting my argument into DDO makes it lose it's italic and bold formatting...
Ignore the "Emphasis added" in my list of sources. DDO's formatting removed the emphasis.
Posted by System113 3 years ago
System113
I'll give you that, Liberal, I had never looked for a source for the quote. After a quick google I can find nothing attributing the quote to Madison. Just goes to show you can't take stuff on the Internet at face value.
Posted by LiberalHoyaLawya 3 years ago
LiberalHoyaLawya
System113, your Madison quote is a fake. There is no way James Madison would have used a phase as dumb as "perverted and subverted the Constitution." Even conservatives on Free Republic's website are discrediting the validity of that quote:

http://www.freerepublic.com...

Feel free to prove me wrong with an actual citation, but I would be shocked if that's a real quote from James Madison.
Posted by System113 3 years ago
System113
Living document just sounds like over time the Federal government can slowly strip down All those pesky rules and rights whenever it is convenient for them. If the 4th amendment isn't convenient tomorrow, well just "interpret" it differently to something that benefits the Feds.

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."–James Madison: Father of the Constitution
Posted by logicrules 3 years ago
logicrules
to bad...would have taken it
Posted by LiberalHoyaLawya 3 years ago
LiberalHoyaLawya
It looks like this response is coming too late for you, logicrules, but I'll give it anyway.

I would define "living" as an adjective synonymous with "changing" or "evolving." And when I say that the Constitution should be interpreted as a living document, I mean that the accepted meaning of the powers and rights articulated in the Constitution should be able to change to fit the times, with or without explicit constitutional amendments.

I will argue that the original intent behind particular words or phrases in the text of the Constitution should have a persuasive (non-binding) influence only.
2 votes have been placed for this debate. Showing 1 through 2 records.
Vote Placed by vmpire321 3 years ago
vmpire321
LiberalHoyaLawyaNalydmercTied
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Total points awarded:60 
Reasons for voting decision: Conduct goes to PRO for the forfeits. PRO also used an ample amount of sources to support his points. Overall, I thought that PRO's arguments were superior and more convincing then CON's.
Vote Placed by thett3 3 years ago
thett3
LiberalHoyaLawyaNalydmercTied
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Total points awarded:30 
Reasons for voting decision: yeah