Burlington
High
School
Burlington,
Kansas
Teacher:
Mrs.
Devra
Parker
Say
Hello
To
A
Living
Constitution
By
Heather
Carroll
12th
grade
Look around; there are living plants, animals, humans and much more. Yes, I said living. However, what does the term living really mean? Does it mean that whatever the subject is it moves around? Does it mean that the subject breathes? My point is clear: the term living could be considered to be too broad. However, let’s seriously think about this term and relate it to the Constitution. A living Constitution could have many meanings. However, I think that a living Constitution is basically a little more flexible and not so set in stone. I don’t think that it is thought of as having to do things one way and that is the only way to do it.
Roger Pilon proposed a question to his readers. The main point of his question was to ask how we went from having limited government where everything was done in a certain way to a government that is pretty much unlimited. It’s basically looked at as if we have bent the rules to benefit the needs of whomever. At times it may seem like it would better benefit the needs of today’s society if we did go through the ratification process. At least this way we could make it so that government would better benefit our needs in this day and age. If we ratified the Constitution then, theoretically, there should be no reason for anyone to complain about disagreeing with the way that government is being run. Oh wait, just because it’s written that way does not always mean that it’s going to get followed. I mean, it was written and now we have government officials who are perceived as being too flexible. Things are always getting changed and bent so I guess that even ratifying the Constitution may not necessarily be any help.
When our Founding Fathers wrote the Constitution, I bet they never in a million years thought that they would see all of the bending and flexibility of our Constitution. When they set it up, it was supposed to be set in stone and strict to an extent. They didn’t intend for it to get bent and changed to the point that the government ran everything. When they got it started, it was supposed to be more about the people, and the people were supposed to have more control. The government was supposed to basically sit back and baby-sit. In today’s society the government has stepped in and the people of this country have lost much of the governmental input. The government has decided that they have the control and that they should be the ones who make some of the most important decisions without even consulting the people. What’s worse is that sometimes the people’s opinion doesn’t even matter. So why do they even ask about what we think?
If government can be unlimited then, in the end, everything could be considered unlimited. Think about it. Governmental officials could change some major law at any given moment so that it fits them, so who is to say that we cannot just go change something like the speed limit? While we are at it, we should just argue that it did not seem like something that was big enough and important enough to need the opinion of the government. After all, sometimes it seems like they just change things that they may perceive as small and insignificant. Do they think that just because they have the higher paying profession they automatically have control over everything? If that be the case, then someone should let them know that they are slightly wrong in their thinking.
Hey, as long as we are changing things, let’s lower the age for smoking and drinking. I’m not saying that all of the decisions that the government makes are life threatening or altering, but some could be. It just depends on who we are talking to. However, I take back wanting to lower the smoking and drinking age. I would be just as happy to see it get raised. Hey, if we can outlaw drugs then what is stopping us from changing the smoking and drinking laws? By change I mean let’s make a drastic change. Let’s just get them outlawed. They can be just as dangerous as drugs. Alcohol impairs us almost as badly as any of the illegal drugs. Both can be the cause of death.
In the end all I am saying is why can’t we make the rules and keep them? Is it really that hard to keep things from becoming so flexible? I think not. I guess I’m not up there with the entire country’s lives in my hands and having to worry about what effects are going to come out of the decisions I make.
Questions
Based
on
Required
Reading
Q1- Explain what Roger Pilon means when he speaks of a bifurcated Bill of Rights.
What Roger Pilon means when he speaks of he Bill of Rights is to have a Bill of Rights that is divided into two sections, “fundamental” and “non-fundamental” rights.
Describe what happened in 1938, according to his testimony.
In the 4th footnote of United States vs. Carolene products, they decided a fundamental right like speech or voting was implicated. The court would apply “strict scrutiny” and find it unconstitutional.
Q2-
Give
three
examples
of
what
is
described
in
the
testimony
as
fundamental
rights
and
three
examples
of
nonfundamental
rights.
Three fundamental rights are speech, voting, and press. Three examples of non-fundamental rights are property, contract, and relations.
Which of these rights do you, after reading portions of Dr. Pilon's testimony, believe should be subjected to strict scrutiny?
I agree that fundamental rights should be subjected to strict scrutiny.
Q3-
Define:
Enumerated powers- The concept of enumerated powers implies that the legislature may exercise only those powers that are stated in the Constitution, limited, of course, by the Bill of Rights and the other protections found in the Constitutional text.
Living constitution- This phrase refers to the U.S. Constitution and it has multiple meanings. It can refer to one of the three items:
1. The ability of the Constitution to change and evolve through the amendment process.
2. The vibrancy and relevancy of the Constitution and its protections in the everyday life of contemporary Americans.
3. A doctrine of constitutional philosophy that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt to the changing times.
Politicizing the constitution- This term refers to how the politicians interpret the Constitution so it will fit their needs.
Q4-
Why
does
Roger
Pilon
claim
a
living
constitution
is
worse
than
no
constitution
at
all?
He claims this because it conserves the cleanness of constitutional legitimacy while unleashing the political forces that a Constitution is meant to restrain.
Q5-
Explain
what
is
meant
by
moral
legitimacy,
political
legitimacy
and
legal
legitimacy.
Give
your
own
example
of
each.
Moral legitimacy is whether or not people accept the law or fact that using their moral beliefs as guidelines, an example of an issue that could be morally legitimate or illegitimate could be abortion. Legal legitimacy is whether or not people accept the law or fact of using their legal knowledge as guidelines. An example of legal legitimacy would be the legality of evidence found in a person’s house without a search warrant. Political legitimacy is whether or not people accept the law or fact using their political beliefs, example; liberal vs. conservative.
Q6-
Dr.
Pilon
spends
some
time
enumerating
five
implications
of
an
illegitimate
constitution.
Name
the
five
implications
and
state
why
one
seems
to
be
the
most
serious
in
your
personal
opinion.
Five implications of an illegitimate Constitution are the loss of legitimacy, the chaos that follows law more generally; disrespect for the Constitution entails disrespect for the rule of law itself; when Constitutional integrity declines we lose the discipline a Constitution is designed to impose on government; and the economic implications of effectively unlimited government. The most serious implication in my opinion is the loss of legitimacy. I believe that this is the most important because no one can believe something is legitimate, whether it be because of their moral, legal or political views.
Q7-
When
he
says
"those
true
to
its
conception
as
a
means
of
founding,
maintaining
and
promoting
a
great
nation
in
the
public
good.",
is
Mr.
Frankfurter
talking
about
the
wisdom
of
enumerated
powers
or
the
constitution's
preordained
destiny
as
a
living
document?
I believe that he is not talking of the Constitutions preordained destiny as a living document.
Q8- Do you agree, with Felix Frankfurter, that the Founding Fathers refused to write limitations and qualifications into the U.S. Constitution?
No, I do not agree with Felix Frankfurter that the Founding Fathers refused to write limitations and qualifications into the U.S. Constitution.
Q9-
Compare
the
manner
in
which
the
U.S.
Constitution
was
changed
after
the
Civil
War
with
the
way
changes
were
made
to
the
Constitution
during
the
New
Deal
era.
The Constitution was changed in the Civil War era the right way, through the ratification process. They abolished slavery and the balance between the federal and state governments. The changes made during the new deal era were not done the right way, with court packing, and trying to re-write the Constitution.
Q10-
U.S.
Constitution
prevents
legislators
from
making
the
needs
of
Americans
their
priority.
This
paragraph
claims
that
the
expressed
purpose
of
the
U.
S.
Constitution
is
to
authorize,
institute,
empower,
and
limit
the
federal
government.
(fill
in
the
blank)
Q11-
FDR
made
a
political
speech
for
the
times;
the
eve
of
WW
II.
References
were
made
in
his
speech
that
may
be
relevant
to
our
position
in
the
world
today.
Comment
on
the
similarities.
Some of the similarities that he mentioned are the changing society, people wanting a Utopia overnight, and the lesser amount of people that actually understand how the government works.
Q12-
Comment
on
whether
you
think
the
"new
idea"
come
to
"dominate
thought
about
government"
is
still
the
dominate
idea
or
has
the
past
70
years
turned
it
into
an
old
idea
that
needs
to
be
reformed?
Make
these
comments
brief
as
this
question
is
the
crux
of
the
paper
you
will
be
preparing
for
submittal.
I believe that the new idea has stuck through the 70 years, and is still the idea that it started out to be.