I had a conversation recently with a friend of mine, who just happens to be a lawyer in DC these days, and we got to talking about con law and the interpretation of the U.S. Constitution. I know a great majority of people on here aren't from the U.S. so I apologize for writing something that is of little relevance to you, but I wanted to speak about something I just recently discovered.

I've always heard people claiming the Constitution to be a living document, and always I've found that to be a peculiar remark. So, I've been doing a bit of research and debating outside of the Sift and wanted to share what I've found.



Interpretative positions:

Living Constitution : According to wikipedia, "suggests that the Constitution has a dynamic meaning." This means the document is a work-in-progress and open to changing interpretations.

Originalism : According to wikipedia, "is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting." There are two interpretations of this Originalism, and they are:

Original Intent: "which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it."

Original Meaning: "is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be."

My take on these definitions:

I personally don't believe the Constitution can be a living document, because what's the point of having a written document if it's open to interpretation. It's not a Luther Blissett novel, it's a writ of governance, and if the meaning cannot be understood, then the document is worthless and petty and not worth giving legitimacy.

I personally don't believe in interpreting the Constitution based on original intent, either. How is any of us to know the intent of that document based on the people who wrote it? It would take countless scores of historians to piece together what would still be a loose interpretation of the men who wrote it. The major issue is that the men who drafted the document had differing opinions, so it would be pointless to determine intent and logically reach a consensus.

The only one that makes sense is interpreting the Constitution based on original meaning, because all we need to do is look at other documents at that time that can confirm the meanings of the words when that document was written. This can be easily accomplished by using published newspapers and the Samuel Johnson Dictionary (published at that time) to get a sense of the words' meanings in the Constitution. This is important to understand certain words as "regulate" which comes up very often in the text of the Constitution, and, of course, back then it meant "to make regular" which is different than the colloquial understanding of the word today.

Madison, one of the most notable framers of the Constitution, agrees with me. Here's what he said about the Constitution after it was ratified, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers."

Essentially Madison said he agrees in using the "sense" in which the document was written when it was "accepted and ratified". That means the document isn't open to interpretation based on changing lexicon.



Interpretation of Constitutionalists vs. Libertarians:

Constitutionalists and Libertarians agree rights are natural and cannot be given to you by a piece of paper, men, or government. They also agree the Constitution is a document that limits the power of the government and does not give rights to men and women. Even the Bill of Rights can be smartly interpreted as a list of government limitations more than a list of individual rights. It's written to protect individual rights, but it doesn't decree the document gives any rights to the individual, but instead protects them.

Constitutionalists believe the letter of the Constitution, and none of them believe the document is living and mutable; except for the Amendment process which is clearly part of the document's text, and requires a great deal of effort to properly amend. The Amendment process was purposely meant to be difficult.

Most Libertarians (who're not opposed to the Constitution) agree with everything the Constitutionalists agree with except for the Amendment process (this excludes me, because I tend to lean more toward the Constitutionalists on this one). Their position is that if rights are natural, then the Amendment process serves to restrict those rights. You need only look as far as the18th Amendment which prohibited alcohol in the U.S. This illegitimate Amendment was ratified and therefore became part of our Constitution, and if it hadn't been repealed by the 21st Amendment, we'd still be living with a Constitution that no longer was a means to restrict and limit government, but a document to restrict and limit the people, as well.



Constitution as a complete concept:

The Constitution was written to protect the individual by limiting government. And the document needs to be understood as a complete concept instead of a list of sound bites. One of the more important things to note about the Constitution is where the Congress derives its powers and where they're limited. Article 1 Section 8 gives the Congress their power. Article 1 Section 9 and the Bill of Rights limits those powers. So in other words, Congress can do everything listed in Article 1 Section 8 (and ONLY Article 1 Section as long as it doesn't encroach on the limitations set forth in Article 1 Section 9 and the Bill of Rights... and don't forget the 10th Amendment. Ahem.

This is important to note because recently a lot of people are quoting the Constitution's Preamble and the Taxing and Spending Clause where it makes reference that the government shall "...provide for the... general Welfare". And those who use that sound bite, only use that sound bite. The recent bailouts are unconstitutional, as well, because according to Article 1 Section 9 (which limits the power of Congress), “No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.” And Obama used TARP money which was appropriated for banking industry, not the auto industry.

Food for thought.