NationStates Jolt Archive

And the US one and the founding fathers in particular.

Spiralling off another thread.

In the US points are often made on 'what the founding fathers intended' in the sense that they knew what was best. This seems to me like lazy thinking, they were pretty clever guys but far from infallible and two centuries or so is a long time for the same reasoning to apply to vastly different societies. To say "that's how the founding father's wanted it" is to try and dodge justifying something and having it as good by association. A sort of reverse Godwin if you will.

The US of course has a (mostly, it's not a pure form) dead constitution where change is tough to implement. The UK has a much more alive version that changes almost daily.

The advantages of greater protection against tyranny (?) of a dead vs the greater flexibility (?) of a living one come with their own inherent problems.

So which do you think is better, and why?

EDIT: To clarify, I know neither the US or the UK are pure forms of either dead or living constitutions, they were just handy examples of each wing.

EDIT 2: Yes, I know the terms I used are probably inaccurate, for clarity's sake I'm talking about an easily changeable constitution to one that is hard to change. Call them whatever you wish.

Our constitution is by no means dead; it can be amended and interpreted to suit the needs of changing times, but its fundamental protections are so strongly defended by the document that it would be very difficult to ever undermine any significant component of it. I don't want a constitution that is "living" or "dead", I want one that not just establishes personal freedoms but defends them through strength of precedence and law from being eroded in the name of "emergencies" or immediate concerns.

I'll definitely take the slower change that stems from reliance on a lengthy amendment process, changing judicial interpretations and precedent than have a constitution that can change more quickly but is inherently vulnerable to manipulation towards more authoritarian ends. Sometimes, being able to change faster is a weakness rather than a strength, and I think that's one reason why the US has been able to protect its system for so long when it has failed in other nations. If fundamental protections like the governmental system in the articles or the Bill of Rights were as easily changed as any piece of legislation, I do not believe for a second our country would have been able to weather the challenges it did without sinking in to some form of authoritarianism or collapsing.

Recall that 221 years is a pretty long time for any single government to stand without significant change and disruption, let alone maintaining its political system intact for that period. Most other nations haven't had any kind of democratic system whatsoever for that long, let alone a continuous republic that has done a pretty good job of protecting individual and political freedom, two things very scarce, if not downright nonexistent, for the majority of the world's population. Even India has only been an established republic for 58 years, and it's the only one larger than us. We're obviously doing something right where others have failed.

Non-living constitutions are for people who seem to think that what worked 300 years ago still works now. And choose to ignore the fact that the Constitutions themselves tend to be extermelly flexable.

Unless of course it involves giving the executive branch unlimited and insane amounts of power. Then theyre all about a "living" Constitution.

Recall that 221 years is a pretty long time for any single government to stand without significant change and disruption, let alone maintaining its political system intact for that period. Most other nations haven't had any kind of democratic system whatsoever for that long, let alone a continuous republic that has done a pretty good job of protecting individual and political freedom, two things very scarce, if not downright nonexistent, for the majority of the world's population. Even India has only been an established republic for 58 years, and it's the only one larger than us. We're obviously doing something right where others have failed.

The civil war? And noting how long it took black people to be allowed to be a part of this. The UK being the obvious counter example of a living constitution with a very long history.

I agree with a constitution that sets the structure of government, from separation of powers to equal voting rights, I think it should be quite concrete and very difficult to change.

I do not agree with a constitution that informs on how people should live. A constitution should have nothing to say on abortion or gun control, which are the two obvious issues that, for me, are an issue with the American constitution.

i feel that it allows legislators to hide behind the constitution on these issues rather than deal with them responsibly.

Ultimately however, the government of America has lasted the way it has not because of the constitution but because of the people. If a populist enough tyrant came to power, s/he could destroy the constitution anyway.

Change needs to be in a country these days. Like everywhere in one. Especially in a Constitution.

Non-living constitutions are for people who seem to think that what worked 300 years ago still works now. And choose to ignore the fact that the Constitutions themselves tend to be extermelly flexable.

Unless of course it involves giving the executive branch unlimited and insane amounts of power. Then theyre all about a "living" Constitution.

Kind of like a biblical perspective?

The civil war? And noting how long it took black people to be allowed to be a part of this. The UK being the obvious counter example of a living constitution with a very long history.

That's right! A constitution like the British Constitution is like the mystical unicorn of the British coat of Arms - it exists only as an idea (with a shitload of conventions and jugements to underpin it.

Do UK police still get drunk drivers to say "British Constitution"? I suppose breathalysers have taken some of the fun out of the drunken driving rituals.;)

Change is easier to implement in the UK system, but that also means that with an uncodified constitution, everything can change at the whim of Parliament.

There's a lot about the UK system that is very up in the air that no one knows how it would actually work until it's encountered and given that encountering it would be during a crisis... well... that might not be the best time for a constitutional crisis.

The Constitution is fine the way it is. Madison was brilliant in many ways.

It's not impervious to change. It's just a little difficult.

This is a good thing as it defends against mans fickle nature. An amendment will earn it's spot rather then be added on a whim.

I prefer the US Constitution. change is needed but I like the difficultly and time it takes for the process. Otherwise the constitution would be like the state of California's Constitution and people can amend it to ban something they don't want pretty quickly. Hence the Gay marriage ban there so quickly after the supreme court of California struck down the ban.

I prefer the US Constitution. change is needed but I like the difficultly and time it takes for the process. Otherwise the constitution would be like the state of California's Constitution and people can amend it to ban something they don't want pretty quickly. Hence the Gay marriage ban there so quickly after the supreme court of California struck down the ban.

The fact that a constitution defines marriage is ridiculous.

Change is easier to implement in the UK system, but that also means that with an uncodified constitution, everything can change at the whim of Parliament.

There's a lot about the UK system that is very up in the air that no one knows how it would actually work until it's encountered and given that encountering it would be during a crisis... well... that might not be the best time for a constitutional crisis.

The US has a bill of rights which many constitutions don't have (Britain and Australia included). However the Bill of Rights in the US has not always successfully protected its peoplke. e.g. the Palmer Raids in 1919, the HUAC McCarthyist red-purges of the 1950s and the USA under George W (The Patriot Act for instance)
I would argue that freedoms may have been better preserved under the unwritten constitutions of Britain and Australia.

The US has a bill of rights which many constitutions don't have (Britain and Australia included). However the Bill of Rights in the US has not always successfully protected its peoplke. e.g. the Palmer Raids in 1919, the HUAC McCarthyist red-purges of the 1950s and the USA under George W (The Patriot Act for instance)
I would argue that freedoms may have been better preserved under the unwritten constitutions of Britain and Australia.
And so how do you answer Britain's own terror laws which have containment policies well above the US system? Not to mention the current abuses of Australia's government for freedom of speech that has been talked about in this forum for the last few days?

Change is easier to implement in the UK system, but that also means that with an uncodified constitution, everything can change at the whim of Parliament.

There's a lot about the UK system that is very up in the air that no one knows how it would actually work until it's encountered and given that encountering it would be during a crisis... well... that might not be the best time for a constitutional crisis.

There's a quote I like.

"The British law is made up of legislation, precedent, and what you can get away with".

I don't think you can say the UK system is untested.

But surely a system preventing the people having from what they want is undemocratic? How can we say the founding fathers know better, what are we basing that on?

The fact that a constitution defines marriage is ridiculous.

agreed. now if it took 3/4s of the vote to pass such an Amendment then it might have never been proposed.

The people who call for a more easily changed Constitution often think that what they consider as progress. they don't realize that ease of change goes both ways and a more retro group can just as easily get a 50% vote to add an amendment that they think is just.

There's a quote I like.

"The British law is made up of legislation, precedent, and what you can get away with".

I don't think you can say the UK system is untested.

But surely a system preventing the people having from what they want is undemocratic? How can we say the founding fathers know better, what are we basing that on?
Let me put it this way, according to the UK, why can't, oh, say, Prince Harry marry a Catholic girl and she be allowed to maintain her religion?

Because the UK constitution, thanks to an act of Parliament way back in the day, says you can't.

Sorry, I don't see where letting the people do what they want is 1. the way the UK system actually works, or 2. anything better than mob rule.

Dead. Constitutions shouldn't be based on political considerations of the day, but on basic, universal truths that can't come from politicians. Constitutions should also be extremely simple documents, which lay out very simple ground rules that restrict governments to very simple tasks. In an ideal scenario, you wouldn't need a bunch of highly decorated judges to know what it's meant to be saying.

Allow the government of the day to fiddle with it, and you get Latin American scenarios where every government just makes up its own little constitution to fit its current authoritarian ambitions.

Let me put it this way, according to the UK, why can't, oh, say, Prince Harry marry a Catholic girl and she be allowed to maintain her religion?

Because the UK constitution, thanks to an act of Parliament way back in the day, says you can't.

Sorry, I don't see where letting the people do what they want is 1. the way the UK system actually works, or 2. anything better than mob rule.

The point about 'what you can get away with' is to show the holes in the UK system where roles aren't strictly defined/

They are actually looking at repealing that one.

As for 2, define for me what you mean by mob rule? If you mean that the majority of a populace's representatives are in favour of something, is that not 'democracy'?

but on basic, universal truths that can't come from politicians
And who sets these basic universal truths? And by whose authority?

The point about 'what you can get away with' is to show the holes in the UK system where roles aren't strictly defined/

They are actually looking at repealing that one.

As for 2, define for me what you mean by mob rule? If you mean that the majority of a populace's representatives are in favour of something, is that not 'democracy'?
so slavery was democracy as long as the whites equaled 51% or more of the total population ?

And who sets these basic universal truths? And by whose authority?
Americans By the Authority of God duh.

so slavery was democracy as long as the whites equaled 51% or more of the total population ?


Yes. democratic is not synonymous with good, it is just the least worst out of the ones that have been tried.

The point about 'what you can get away with' is to show the holes in the UK system where roles aren't strictly defined
Yes, and what happens during a crisis when, for whatever reason, the Queen decides to use her emergency reserve powers, whatever they may be? Or force a constitutional crisis and withhold consent?

They are actually looking at repealing that one.[/QUOTE]
Jolly good, after how many years? And it's not like the UK has been a bastion of religion now, has it? But unless Parliament reverses itself, there is no fall back position. With a constitution that is spelled out, the government can be taken to task for violating it.

As for 2, define for me what you mean by mob rule? If you mean that the majority of a populace's representatives are in favour of something, is that not 'democracy'?
And so when 51% of the population decides that the other 49% should die?

Yes, and what happens during a crisis when, for whatever reason, the Queen decides to use her emergency reserve powers, whatever they may be? Or force a constitutional crisis and withhold consent?
Who knows, should be exciting ;). In vague seriousness the UK system working on the basis of a nod and a wink is a weakness, but one we've managed to work with because everyone's been good chaps and played along.


They are actually looking at repealing that one.
Jolly good, after how many years? And it's not like the UK has been a bastion of religion now, has it? But unless Parliament reverses itself, there is no fall back position. With a constitution that is spelled out, the government can be taken to task for violating it.
How long did it take for it to become self-evident that black people were equal?


And so when 51% of the population decides that the other 49% should die?
Is democratic. See my last post.

And who sets these basic universal truths? And by whose authority?
People with brains set them, by the authority of yours.

Example: Should there be a rule against killing one another? If there wasn't one, there'd be chaos. People wouldn't be able to live their lives as they see fit, they wouldn't be able to plan ahead as effectively and society would suffer as well. Hence, there should be such a rule. A smart person can figure this out and write it down, but you would be able to verify this line of thought by yourself. A constitution shouldn't have anything in it that a citizen wouldn't put in it him- or herself, and barring some sort of mass delusion, the only way that this can be the case is if the things that are in it are logical and universal for any human being who cares to think. Self-evident, as someone once put it.

Yes. democratic is not synonymous with good, it is just the least worst out of the ones that have been tried.

agreed a constitution that is hard to adjust is simply a means to make sure ti stays good.

agreed a constitution that is hard to adjust is simply a means to make sure ti stays good.
Or bad.

People with brains set them, by the authority of yours.

Example: Should there be a rule against killing one another? If there wasn't one, there'd be chaos. People wouldn't be able to live their lives as they see fit, they wouldn't be able to plan ahead as effectively and society would suffer as well. Hence, there should be such a rule. A smart person can figure this out and write it down, but you would be able to verify this line of thought by yourself. A constitution shouldn't have anything in it that a citizen wouldn't put in it him- or herself, and barring some sort of mass delusion, the only way that this can be the case is if the things that are in it are logical and universal for any human being who cares to think. Self-evident, as someone once put it.

Except nothing is universally agreed. And who is and isn't smart is widely argued, and IQ is not always synonymous with building a good state.

Adam Smith and Marx were both clever blokes, who'd have built widely different states.

The only true mandate comes from the populace at large, and political power should stem purely from this.

The purpose of the rule of law (and that's what you're really addressing when you talk about a Constitution), is NOT to bend to the momentary fads and enthusiasms of the majority, but to provide a single precedent for all citizens, including the unpopular ones.

Let me say it again, just so we understand each other...

"INCLUDING THE UNPOPULAR ONES."

At any given moment, a "Living" constitution in the U.S. of the sort you describe, could have been used to crush the Civil Rights Movement, refuse the right to vote, or hold office to Jews, Catholics, Buddhists, Mormons, and Agnostics or Atheists, would have authorized the incarceration of Abolitionists (or their mass execution), disenfranchised the entire Progressive Movement of the post-1870s, or enshrined Monopolies under Constitutional Protection and thereby prevented the trust-busting that ended the Standard Oil monopoly.

A "Dead" constitution that is hard to change is the only reason MLK could have held his rallys, it's the only reason there was ever a labour movement (both based on first amendment freedom of association), a "Dead" constitution is why McCarthy was caught, and not enshrined as "Our beloved Leader". It's how Congress could oppose Nixon, and why we had an election this year, instead of a civil war.

England doesn't need it, because England is a Monarchy. The English constitution exists at the will and consent of the Queen.

Freedom for one requires freedom for all-while there are bad interpretations, and outright violations (Patriot Act, Sedition Act of 1917, Fairness Doctrine, Kelo Vs. New Haven, Dredd Scott, etc), because the document is "Dead" and hard to change, those violations are eventually overcome and undone, since they are fundamentally in violation of the founding document. If the founding document could be changed to say, for instance, that "Blacks and other coloureds aren't the same as other citizens", it would be the fundamental law of the land, there would have been NO Brown vs. Board of Education, no Tuskeegee Airmen, and no integration of the armed forces in 1948.

Mob rule, or Tyranny of the Majority, had a LOT to do with the durability of Jim Crow, if the constitution were easy to change, that mob rule would run riot, and what social progress we HAVE would be nonexistent or erased.

Except nothing is universally agreed. And who is and isn't smart is widely argued, and IQ is not always synonymous with building a good state.
By "smart" I don't mean smart. I thought it was clear from the context - it would have to be a group of people who know how to think and how to make arguments, who are trained in a variety of disciplines (philosophy, economics, etc) and who have the time to sit down and design a constitution.

The idea that nothing is universally agreed is, basically, bullshit. Or rather, the idea that nothing can be universally agreed upon is. Some things are true by virtue of being true, and while I can disagree with them, I couldn't back up this position in any way. I'd just be an idiot.

Adam Smith and Marx were both clever blokes, who'd have built widely different states.
And Marx was clearly wrong. In fact, people were able to pick holes in his argument even back then. So clearly marxism wasn't something that couldn't be logically refuted by someone who would care to think.

The point is that agreeing to disagree is ultimately not a valid or sustainable way of living in society, especially if you're concerned with such things as constitutions and governments. At best you could have people going their separate ways and making separate states with separate constitutions. Then, if arguments fail to convince, reality can be the test, and a marxist state would end in failure. That should then be the end of the discussion.

The only true mandate comes from the populace at large, and political power should stem purely from this.
"The populace" can't be a better judge of truth than any single person's capacity for rational thought. Even if we decide things by majority verdict, we still actually make the decision in our own heads, each person for themself. We establish what argument we consider correct, and we act accordingly. The vote afterwards doesn't establish truth, or whether the outcome works or whether it is good in any meaningful way whatsoever. It's just a coordination mechanism that allows us to cut short the time we'd have to spend on actually debating each other until everyone is fully aware of the best way we can establish with the information at hand. Whether that's a good thing is perhaps an argument for another day, but even so democracy only has a value insofar as it strives to be the closest possible match to an argument that can't be refuted.

Who knows, should be exciting ;). In vague seriousness the UK system working on the basis of a nod and a wink is a weakness, but one we've managed to work with because everyone's been good chaps and played along.
And when they don't? That is the strength of the US Constitution, when they decide not to play along, we can hold their feet to the fire because they went against the rules.

How long did it take for it to become self-evident that black people were equal?
How long did it take in the UK? And the UK hasn't come close to electing a black prime minster now has it?

Is democratic. See my last post.
Is trampling on the rights of the minority. That IS mob rule and the tyranny of the majority is just as bad as the tyranny of one.

By "smart" I don't mean smart. I thought it was clear from the context - it would have to be a group of people who know how to think and how to make arguments, who are trained in a variety of disciplines (philosophy, economics, etc) and who have the time to sit down and design a constitution.
Like all philosophers and economists even nearly agree. Sit three of each in a room and you'd end up with a dozen constitutions.


The idea that nothing is universally agreed is, basically, bullshit. Or rather, the idea that nothing can be universally agreed upon is. Some things are true by virtue of being true, and while I can disagree with them, I couldn't back up this position in any way. I'd just be an idiot.

Example?



"The populace" can't be a better judge of truth than any single person's capacity for rational thought. Even if we decide things by majority verdict, we still actually make the decision in our own heads, each person for themself. We establish what argument we consider correct, and we act accordingly. The vote afterwards doesn't establish truth, or whether the outcome works or whether it is good in any meaningful way whatsoever. It's just a coordination mechanism that allows us to cut short the time we'd have to spend on actually debating each other until everyone is fully aware of the best way we can establish with the information at hand. Whether that's a good thing is perhaps an argument for another day, but even so democracy only has a value insofar as it strives to be the closest possible match to an argument that can't be refuted.
It's not about establishing truth, it's about establishing a justification to wield power over other people. You cannot establish pure universal truth in a moral context of 'right' and 'wrong'. Given the same information even if you had eternity not everyone would come out with the same point of view.

And when they don't? That is the strength of the US Constitution, when they decide not to play along, we can hold their feet to the fire because they went against the rules.
More an idiosyncracy of the UK system than an indictment of living constitutions as a whole. Indeed the problem comes more from tradition acting to keep the UK constitution more 'dead'


How long did it take in the UK? And the UK hasn't come close to electing a black prime minster now has it?
Doesn't take into account the comparative levels of the minorities. We have elected a jew and a woman though if that helps.


Is trampling on the rights of the minority. That IS mob rule and the tyranny of the majority is just as bad as the tyranny of one.
Democracy is not perfect certainly, and the restriction on mob rule is why I prefer representative to direct versions.

But I see no mandate or legitimacy in having a few dead men from similar backgrounds a couple of centuries ago being able to overrule the majority will of the citizens of a country. Is that democracy?

More an idiosyncracy of the UK system than an indictment of living constitutions as a whole. Indeed the problem comes more from tradition acting to keep the UK constitution more 'dead'
I would like to point out that the US Constitution is not a dead constitution either. Your argument is more apt for a written constitution vs a unwritten one.

Doesn't take into account the comparative levels of the minorities. We have elected a jew and a woman though if that helps.
Given some of the problems with racism that the UK has, are you sure you really want to go this route?

Democracy is not perfect certainly, and the restriction on mob rule is why I prefer representative to direct versions.

But I see no mandate or legitimacy in having a few dead men from similar backgrounds a couple of centuries ago being able to overrule the majority will of the citizens of a country. Is that democracy?
They don't. The Constitution written back in 1787 has been amended numerous times and interpreted more times than I'd like to count. The framers wouldn't really be able to recognize the body of constitutional laws that governs the US now. To call on the founding fathers is no different from a Brit invoking Queen Victoria or English tradition (Something which, BTW constitutes a rather large part of the UK's constitution). They have been held up as ideals, but honestly, their actual views have become matter of debate and can, and have been, changed quite a lot.

Given some of the problems with racism that the UK has, are you sure you really want to go this route?
You're arguing the UK has/had more problems than the US?


They don't. The Constitution written back in 1787 has been amended numerous times and interpreted more times than I'd like to count. The framers wouldn't really be able to recognize the body of constitutional laws that governs the US now. To call on the founding fathers is no different from a Brit invoking Queen Victoria or English tradition (Something which, BTW constitutes a rather large part of the UK's constitution). They have been held up as ideals, but honestly, their actual views have become matter of debate and can, and have been, changed quite a lot.
The constitution needs a supermajority to be changed. Therefore they can in effect overrule the opinions of a majority that is short of that.

NL, you seem to be advocating a platonic model of a "democracy" here - one where some sort of guardian elite makes judgements for the hoi polloi

221 years is not very long at all, for a place where people have been living for more then ten THOSAND years, BEFORE the terrorists it was made 'of, by and for' came along, invaded, and thought they know better then (as fanatics of every stripe invariably do).

its good that america's constitution could be amended.

there were a number of really essential provisions, that it didn't start out having.

there are, unfortuanately, still several it lacks.

what kind of addleheadedness made the attourny genearal a presidential appointee?

i mean if the idea was for no one to be above the law?

or the impeachment proccess easier for trivial matters of social taste then for serious matters of people's lives and the web of life itself all live depends on?

221 years is not very long at all, for a place where people have been living for more then ten THOSAND years, BEFORE the terrorists it was made 'of, by and for' came along, invaded, and thought they know better then (as fanatics of every stripe invariably do).

its good that america's constitution could be amended.

there were a number of really essential provisions, that it didn't start out having.

there are, unfortuanately, still several it lacks.

what kind of addleheadedness made the attourny genearal a presidential appointee?

i mean if the idea was for no one to be above the law?

or the impeachment proccess easier for trivial matters of social taste then for serious matters of people's lives and the web of life itself all live depends on?

It's because Trivialities are easier to deal with, than actual Treasons. Especially when the Treason is enabling a major political contributor to both parties sell restricted military technologies to hostile foreign powers. (McDonnell Douglas, MiRV and Guidance technologies, to the People's Republic of China, 1993. The export violation was retroactively forgiven by President Clinton.)

To call on the founding fathers is no different from a Brit invoking Queen Victoria or English tradition (Something which, BTW constitutes a rather large part of the UK's constitution).

What rather large part? That silly old-fashioned bit of Common Law which makes murder a crime? Yeah, we should do away with that load of outdated nonsense.
Offhand I can only think of one other common law offence still on the statute books, and that's so obscure I don't think it's ever been invoked.

Or were you referring to the odd little rituals and ceremonies around (for instance) the opening of Parliament? Strange though they are, I don't think it does any harm at all for the immature muppets in the House of Commons to be reminded that they are supposed to be part of a proud tradition.

You're arguing the UK has/had more problems than the US?
Not at all, I don't know enough about race history in the UK, but i do know enough to note that it's hands are not clean, not even close to clean.

The constitution needs a supermajority to be changed. Therefore they can in effect overrule the opinions of a majority that is short of that.
Bull, unless zombie Alexander Hamilton and zombie John Adams are campaigning against it, they are not the ones overruling anything.

What rather large part? That silly old-fashioned bit of Common Law which makes murder a crime? Yeah, we should do away with that load of outdated nonsense.
Offhand I can only think of one other common law offence still on the statute books, and that's so obscure I don't think it's ever been invoked.

Or were you referring to the odd little rituals and ceremonies around (for instance) the opening of Parliament? Strange though they are, I don't think it does any harm at all for the immature muppets in the House of Commons to be reminded that they are supposed to be part of a proud tradition.
Try this: http://en.wikipedia.org/wiki/Constitutional_convention_(political_custom)#United_Kingdom

Little things like the Queen agreeing to dissolve Parliament on the Prime Minister's say so.

Yes, and what happens during a crisis when, for whatever reason, the Queen decides to use her emergency reserve powers, whatever they may be? Or force a constitutional crisis and withhold consent?

They are actually looking at repealing that one.
Jolly good, after how many years? And it's not like the UK has been a bastion of religion now, has it? But unless Parliament reverses itself, there is no fall back position. With a constitution that is spelled out, the government can be taken to task for violating it.


And so when 51% of the population decides that the other 49% should die?

The british establishment provides the protection. At least that's how it always used to work. The system probably isn't as good now since there has been this maniacal drive to 'modernize' and allow the parvenu type into the corridors of power (or worse yet, people who got there through academic merit).

Regardless, the Army is still dominated by public schooly types at the top, so there isn't much chance of it going off the rails yet.

By "smart" I don't mean smart. I thought it was clear from the context - it would have to be a group of people who know how to think and how to make arguments, who are trained in a variety of disciplines (philosophy, economics, etc) and who have the time to sit down and design a constitution.
So their individual biases (religion, philosophical schools of thought, economics schools of thought, individual dislike of other constitutional establishers) wouldn't count?

Philosophy and economics can be extremely diverse in opinion... hell, even a constitution made by mathematicians would contain differences due to their own specific mathematics path (or mathematical theories). It would still come down to some kind of consensus action, or a dictatorial/oligarchial decision to shun elements of other people's contributions and focus on a specific person/groups thoughts.


And Marx was clearly wrong. In fact, people were able to pick holes in his argument even back then. So clearly marxism wasn't something that couldn't be logically refuted by someone who would care to think.
However you can poke holes in any person's argument or philosophy, just by virtue of having a different 'good' in mind.

The idea that nothing is universally agreed is, basically, bullshit. Or rather, the idea that nothing can be universally agreed upon is. Some things are true by virtue of being true, and while I can disagree with them, I couldn't back up this position in any way. I'd just be an idiot.
The only thing that comes to mind is 'no killing' and even then that is easily bent or expanded, examples being - No killing, except those who are enemies or No killing, except in our religious ceremony or No killing animals. Anything else is a social creation affected by some biological processes (or the social setting overpowers those initial settings).

The point is that agreeing to disagree is ultimately not a valid or sustainable way of living in society, especially if you're concerned with such things as constitutions and governments. At best you could have people going their separate ways and making separate states with separate constitutions. Then, if arguments fail to convince, reality can be the test, and a marxist state would end in failure. That should then be the end of the discussion.
I find it a bit odd that your only example is a marxist state (which also ignores just how many different marxist groups there are, both state and anarchist types). Well if everyone went their own ways some stalinist (or other generic expansionist, militarist, dictatorial) type group would probably just take over most of the others.

The problem with your conclusion is that there is only one 'truth', when a constitution is about what people want, or what will keep them in line and those are diverse.

The further a constitution needs to expand (to cover more people, institutions or land) the more nebulous a composited 'truth' can be.

Try this: http://en.wikipedia.org/wiki/Constitutional_convention_(political_custom)#United_Kingdom

Little things like the Queen agreeing to dissolve Parliament on the Prime Minister's say so.

Doesn't really pass the 'So what?' test, to be honest.

So which do you think is better, and why?

I don't know if I'm inclined to endorse this dichotomy between "living" and "dead."

The Constitution itself does not change. The words are the same. Two things, however, do change, and should affect how we apply the Constitution: first, circumstances as the nation changes, and second, the conceptions we have of particular concepts in the Constitution, like "equal protection" or "liberty."

A modern, developed, post-industrial economy, for instance, functions in a way that is radically different from the primarily agricultural society this country had in the late eighteenth century, and that means that the powers the federal government has with respect to the economy should probably be more loosely interpreted. "Interstate commerce", for instance, is a very different thing when the next state is at most a few hour's drive away (and less than that by plane or high-speed train), and the principle that the federal government should be involved in regulating it thus has very different implications for policy than it did two hundred years ago.

It's the second element, however, that's most important for the controversial social issues that often pop up. It is frankly, obviously true that the people who wrote and enacted the Fourteenth Amendment did not intend, by doing so, to protect reproductive choice, or to legalize same-sex intercourse, or to open the door to potential challenges to prohibiting same-sex marriage. But this is not the end of the question. What the Fourteenth Amendment does is it calls upon state governments to abide by certain principles that are deemed to be important to liberal, republican governance--and the importance of these principles is not in the particular implications the people who enacted them thought they had, but rather in the principles themselves.

If we really believe in equal protection, we believe in equal protection even when it goes against the limitations, biases, and prejudices of our own minds. The scope of equal protection (and of liberty and of due process) is thus not rightly determined by whatever potentially flawed conceptions of them were had by the people who enacted them, but rather by the best conceptions of the concepts themselves. The question is thus not, "Did people in 1868 think this was included in the concept?" but rather, "Is this actually included in the concept?"

In that sense, the Constitution perhaps is a living document, in that the principles it protects develop to their full, true implications with the social progress we undergo as a nation.

Which saves us a lot of the trouble of amending things all the time--which is a quite rightfully difficult and arduous process. (See recent events in California for why easy changes can go very wrong.)

I reject the OP's dichotomy of "living" versus "dead" document on the grounds that just having a document written does not render it "dead", i.e. unchangeable. Not having a written document does not automatically render a constitution "living", i.e. changeable. This conversation is clearly about the merits of having a "written" constitution versus and "unwritten" one.

That said, I agree with Vetalia, NERVUN and Soheran. They have made all the points I would have made, so having piped up, I'll go back to watching. Great debate so far, btw.

The advantages of greater protection against tyranny (?) of a dead vs the greater flexibility (?) of a living one come with their own inherent problems.

So which do you think is better, and why?

EDIT: To clarify, I know neither the US or the UK are pure forms of either dead or living constitutions, they were just handy examples of each wing.

I believe one of the US's founding fathers said it best.
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

A Constitution is merely a guideline of principles believed in by it's writers, nothing more, and nothing less. The US Constitution specifically states that any authority or power not specifically given to the Federal Government is the precinct of the States. This has never been enforced, and the US Civil War threw it right out the window, but it's never been removed because it apparently sounds good.
The US Founders were remarkably wise by allowing the Constitution to be amended, and the stringent measures to do so to keep "Flavor of the Week" legislation from becoming law of the land, but quite frankly, unless enforced, these words mean nothing.
The Constitution of the United States holds that all men are created equal, but Congress had no problem debating exactly how many slaves equalled a freeman. Similarly, all men are endowed by their Creator with certain inalienable rights, including Life, Liberty, and the Pursuit of Happiness, yet we continue to execute criminals, permit abortions, incarcerate criminals, and illegalise drugs, all of which flies in the face of these so-called "inalienable rights".
The fact we ignore those inconvenient points and will continue to do so means there's no difference between a "Living" or "Dead" document. They're just words, and may be attended or ignored at will.

I believe one of the US's founding fathers said it best.

I don't think that's a particularly relevant quote. Neither a "living" nor a "dead" constitution is a particular guarantor of liberty. What you have essentially done is give a quote on the off-chance that it makes you seem enlightened, when all it has done is suggest that you either don't properly understand the question, or haven't thought about it thoroughly. That quote as a response to the question posed is so inherently ambigious as to render it meaningless.

I also fundamentally disagree with Franklin's point, but that is neither here nor there.

Some one earlier said that the constitution shouldn't have anything to say about Gun rights, and I can not disagree with them more. The whole point of the Second Amendment is not to allow hunters to keep and bear the tools of their trade, but rather that they can defend themselves against private persons who seek to do them harm (either through the act of harming or stealing their property, or through direct bodily harm) or the Government acting to take away their rights.

Remember, the Revolutionary War was fought by persons who owned and used Firearms on a regular basis, and were reasonably proficient to be able to feed their families.

Without that Second Amendment, then the government has free reign to take your means of Self-Defense, and thus push you under the boots of Tyranny.

The strongest advocates of Gun Control have always been dictators. Adolf Hitler, Joseph Stalin, Bloody Mao Tsetsugn, Pol Pot, Kim Jong Il, Fidel Castro, Che Guevera. All of them banned firearms from private ownership, and the resistance movements where made up of people who refused to hand over their tools of self defense.

That is why the Second Amendment states in terms that where in 1787 no uncertain terms that it was the right of the People to Keep and Bear arms and to form themselves into militias, which where then and are still now defined as the body of able-bodied men between the ages of 18-40, to defend the rest of the Constitution from a man who would seek to exert his will against all the persons of the Country.

I invite all of you to read the majority opinion of District of Columbia v. Heller, in which Scalia spells out in no uncertain terms what the meaning of the Second Amendment says, and the intents of the Founding Fathers in the writing of the document. It is a long, but interesting read.

A Constitution is merely a guideline of principles believed in by it's writers, nothing more, and nothing less. The US Constitution specifically states that any authority or power not specifically given to the Federal Government is the precinct of the States. This has never been enforced, and the US Civil War threw it right out the window, but it's never been removed because it apparently sounds good.
The US Founders were remarkably wise by allowing the Constitution to be amended, and the stringent measures to do so to keep "Flavor of the Week" legislation from becoming law of the land, but quite frankly, unless enforced, these words mean nothing.
The Constitution of the United States holds that all men are created equal, but Congress had no problem debating exactly how many slaves equalled a freeman. Similarly, all men are endowed by their Creator with certain inalienable rights, including Life, Liberty, and the Pursuit of Happiness, yet we continue to execute criminals, permit abortions, incarcerate criminals, and illegalise drugs, all of which flies in the face of these so-called "inalienable rights".
The fact we ignore those inconvenient points and will continue to do so means there's no difference between a "Living" or "Dead" document. They're just words, and may be attended or ignored at will.
Point of information: The US Constitution specifically states that any rights that do not belong to the federal government belong to the states OR TO THE PEOPLE. It also states specifically that said rights may be "unenumerated," meaning not specifically named in the Constitution at any given time.

The fact that there are THREE tiers of rights-holding -- federal, state, and the people -- is important in understanding how the federal and state levels interact and why our laws have progressed the particular way they have.

People with brains set them, by the authority of yours.

Example: Should there be a rule against killing one another? If there wasn't one, there'd be chaos. People wouldn't be able to live their lives as they see fit, they wouldn't be able to plan ahead as effectively and society would suffer as well. Hence, there should be such a rule. A smart person can figure this out and write it down, but you would be able to verify this line of thought by yourself. A constitution shouldn't have anything in it that a citizen wouldn't put in it him- or herself, and barring some sort of mass delusion, the only way that this can be the case is if the things that are in it are logical and universal for any human being who cares to think. Self-evident, as someone once put it.

Killing people is not universally banned. Murder, illegitimate killing, is. This allows one to kill another in self-defense. However, what constitutes legitimacy is not universally agreed upon. Are voluntary duels legitimate? How about assisting someone in their suicide? Killing one's cheating spouse and their lover may be ok for some. If a guy refuses to leave another's property, while stealing nothing and offering violence to no one, and that property owner shoots him to death was that legitimate or not? These aren't self evident universally agreed upon truths.

The US Constitution specifically states that any authority or power not specifically given to the Federal Government is the precinct of the States. This has never been enforced,

Yes, it has, and is. It is perhaps not enforced as stringently as some might like it to be, or as stringently as perhaps an honest interpretation would call for it to be. But certainly it has had much legal significance--and even when it is not explicitly at issue, it is at issue implicitly whenever the Supreme Court decides that a given exercise of federal power does not fit within the authorized powers of the federal government (which has happened historically and still does happen.)

and the US Civil War threw it right out the window,

How so? The Constitution is very explicit that the federal government is, within the limits of its sovereignty, supreme over the states. The Tenth Amendment does not change that.

The Constitution of the United States holds that all men are created equal, but Congress had no problem debating exactly how many slaves equalled a freeman. Similarly, all men are endowed by their Creator with certain inalienable rights, including Life, Liberty, and the Pursuit of Happiness, yet we continue to execute criminals, permit abortions, incarcerate criminals, and illegalise drugs, all of which flies in the face of these so-called "inalienable rights".

You're thinking of the Declaration of Independence, not of the Constitution. And the Declaration's statements of inalienable rights do not mean what you think they do, either. They have a context within political philosophy that you are ignoring.

Point of information: The US Constitution specifically states that any rights that do not belong to the federal government belong to the states OR TO THE PEOPLE. It also states specifically that said rights may be "unenumerated," meaning not specifically named in the Constitution at any given time.

The fact that there are THREE tiers of rights-holding -- federal, state, and the people -- is important in understanding how the federal and state levels interact and why our laws have progressed the particular way they have.

And when, exactly, has this been observed? Power to the people occurs only during elections, when we are happily shunted aside that our legislators-mostly at the federal level-may do as they see fit. My point stands.

And when, exactly, has this been observed? Power to the people occurs only during elections, when we are happily shunted aside that our legislators-mostly at the federal level-may do as they see fit. My point stands.
I would argue that decisions such as Brown v. Board of Education are examples of the people's rights superseding the rights of the states, and that the federal enforcement of that decision by deployment of the National Guard under order of the president is an example of the federal government superseding the powers of the state in defense of the rights of the people as embodied in the federal court decision on a case brought by citizens.

EDIT: The US concept of checks and balances often seems to depend on a balancing of three elements, not two. Probably a Freemason thing. But the words in the Constitution were not put there just to make up a word count. Rights accrue to the people, independent of government, and that cannot be ignored.

Yes, it has, and is. It is perhaps not enforced as stringently as some might like it to be, or as stringently as perhaps an honest interpretation would call for it to be. But certainly it has had much legal significance--and even when it is not explicitly at issue, it is at issue implicitly whenever the Supreme Court decides that a given exercise of federal power does not fit within the authorized powers of the federal government (which has happened historically and still does happen.)


Could you cite an instance?
How so? The Constitution is very explicit that the federal government is, within the limits of its sovereignty, supreme over the states. The Tenth Amendment does not change that.
With the opting out allowed to New York and Virigina offered to get them to agree to the Constitution being ignored, I think I'm on firm ground here, but I will concede the point and stand admonished.



You're thinking of the Declaration of Independence, not of the Constitution. And the Declaration's statements of inalienable rights do not mean what you think they do, either. They have a context within political philosophy that you are ignoring.[/QUOTE]

Ordo Drakul, remember that one of the duties of the government is to protect the persons who live within the borders of the State. For that reason, the Incarceration of Prisoners is perfectly justifiable. After all, they forfeit many of their rights as a citizen upon conducting a violent crime against a fellow citizen. Therefore, for the protection of the People, a Person must be locked away and hopefully reformed.

While yes, Abortion is a violation of that Right to life, the Execution of a Prisoner is not, as that prisoner has either committed a similar crime, or proven themselves so far beyond help, that for the good of the People, they must be put down.

I don't like it, personally, I wish that we didn't have to do such things, but we do. Because to protect the rights of the Largest Minority on this planet, the Individual, a single person must sometimes come to harm because of their actions, and incarceration of prisoners is the perfect example thereof.

Could you cite an instance?

New York v. United States, 1992.

Really, any of the various rulings in which the Supreme Court struck down federal legislation on grounds that it exceeded the scope of regulating interstate commerce.

Not at all, I don't know enough about race history in the UK, but i do know enough to note that it's hands are not clean, not even close to clean.
But what exactly is your point? Mine was that the greater protections apparently afforded by a more fixed (written/codified/dead/whichever terms I should've used) constitution are not as firm as they appear.


Bull, unless zombie Alexander Hamilton and zombie John Adams are campaigning against it, they are not the ones overruling anything.
They wrote something into law and and if only 51% of people (assuming equivalent political representation figures) agreed to overturn it then it would not be overturned. Saying the founding fathers might be grandstanding a bit. A past population of the states if you prefer.


Some one earlier said that the constitution shouldn't have anything to say about Gun rights, and I can not disagree with them more.
I invite all of you to read the majority opinion of District of Columbia v. Heller, in which Scalia spells out in no uncertain terms what the meaning of the Second Amendment says, and the intents of the Founding Fathers in the writing of the document. It is a long, but interesting read.

I invite you to trot along to one of NSG's patented gun threads if you wish to discuss gun control rather than types of constitutions.

While I stand admonished and contritely so on points made, I truly wish Antonin Scalia would weigh in on this. I still truly feel the US Constitution has been adhered to more in the breach than in it's existing terms.

The bible is a dead constitution.

The bible also the reason that stalinesque proposition 8 was passed.

Any questions?

...No? Good.

Doesn't really pass the 'So what?' test, to be honest.
Point being that a lot of what is currently required for the UK to funtion has no force of law. Take the Royal Assent thingie. The Queen gives it because she is expected to give it, but there is nothing in law that compels her to do so. There's no way to hold her feet to the fire should she decide not to do it.

A lot of the UK system seems to be based more on "Well that's how we do things" rather than any codified system of laws. Which is great as long as everyone agrees to follow traditions, but if they don't... then what?

But what exactly is your point? Mine was that the greater protections apparently afforded by a more fixed (written/codified/dead/whichever terms I should've used) constitution are not as firm as they appear.
My point being that they are not firm under an unwritten one either. How those rights and protections will apply will always depend upon the culture that they are in. However, it should be noted that a written constitution DOES provide an avenue of legal relief and a stated set of principals to be applied rather than hoping that the legislative body finally gets around to doing something.

They wrote something into law and and if only 51% of people (assuming equivalent political representation figures) agreed to overturn it then it would not be overturned. Saying the founding fathers might be grandstanding a bit. A past population of the states if you prefer.
So? They made it difficult to change to keep the document from reflecting a flavor of the week approach. You have to remember, until about 10 years prior, the men who wrote that document were British. They had lived under a system where the laws changed at the whim of the majority or the king. What they wanted was a system that stayed somewhat stable and one that would make it difficult for any one man to take power by convincing 50% +1 to vote for it.

The fact that the system has worked and continued to work over 200 years after it was written with only 27 amendments testifies that it works fairly well. It's even more amazing when you read that just about all of the framers weren't happy with it and thought that it would last for maybe 10 to 20 years before needing to be totally re-written.

Point being that a lot of what is currently required for the UK to funtion has no force of law. Take the Royal Assent thingie. The Queen gives it because she is expected to give it, but there is nothing in law that compels her to do so. There's no way to hold her feet to the fire should she decide not to do it.
A lot of the UK system seems to be based more on "Well that's how we do things" rather than any codified system of laws. Which is great as long as everyone agrees to follow traditions, but if they don't... then what?


I really can't see how that differs from any other country. Systems of government aways rely on the people at the top playing by the rules. In fact, since the government is in charge, the only thing forcing them to behave is the threat of revolution. Suppose a US president takes power through blatant electoral fraud - what then? Who would order him to stand down, and what would happen if he refused? Would the police or the armed forces be authorised to remove him by force? Who could authorise that? The Supreme Court? Suppose he bribes them, or replaces them, what then?

I really can't see how that differs from any other country. Systems of government aways rely on the people at the top playing by the rules. In fact, since the government is in charge, the only thing forcing them to behave is the threat of revolution. Suppose a US president takes power through blatant electoral fraud - what then? Who would order him to stand down, and what would happen if he refused? Would the police or the armed forces be authorised to remove him by force? Who could authorise that? The Supreme Court? Suppose he bribes them, or replaces them, what then?
Yes, Congress could remove him for that. The military could be ordered to remove him or the police arrest him. Because the whole system is written up and set in stone. There IS no stone in the British system.

Yes, Congress could remove him for that. The military could be ordered to remove him or the police arrest him. Because the whole system is written up and set in stone. There IS no stone in the British system.

Technically there is. There's just an assumption about how it should work. In theory there is no crisis if the Queen withholds consent since legally speaking she is perfectly within her rights to do so. It's in practice things would get a little hairy.


My point being that they are not firm under an unwritten one either. How those rights and protections will apply will always depend upon the culture that they are in. However, it should be noted that a written constitution DOES provide an avenue of legal relief and a stated set of principals to be applied rather than hoping that the legislative body finally gets around to doing something.
But that is supposed to be the main advantage of a fixed consitution. Also, if there was already an avenue for relief and they didn't have to wait around for the legislature, why did they need to pass all those Civil Rights Acts?


So? They made it difficult to change to keep the document from reflecting a flavor of the week approach. You have to remember, until about 10 years prior, the men who wrote that document were British. They had lived under a system where the laws changed at the whim of the majority or the king. What they wanted was a system that stayed somewhat stable and one that would make it difficult for any one man to take power by convincing 50% +1 to vote for it.
How wonderful of them. I mean the very idea that the laws of the land should be set by what 50%+1 of the population thought. Or more precisely, what the majority of their representatives in place as a check on pure populism thought.


The fact that the system has worked and continued to work over 200 years after it was written with only 27 amendments testifies that it works fairly well. It's even more amazing when you read that just about all of the framers weren't happy with it and thought that it would last for maybe 10 to 20 years before needing to be totally re-written.
*shrugs*

UK system has lasted far longer, some are younger, some are older. Doesn't necessarily means it's better.

Yes, Congress could remove him for that. The military could be ordered to remove him or the police arrest him. Because the whole system is written up and set in stone. There IS no stone in the British system.

Yet there is precedent for a British monarch to be deposed. It was even known to happen back in the days when the monarch was genuinely powerful. The Queen's (implied) authority to decline to give royal assent is one which she would only dare use in the most serious of circumstances, with the support of an overwhelming majority of the British people. Otherwise, there's a good chance the resulting crisis would lead to the monarcy being abolished.

I'd like to point out that the idea of a "Living Constitution" is not that the Constitution itself should change, but that the interpretation of the Constitution should evolve as society changes. That's why, for example, the XIV Amendment's due process clause was cited as protecting abortion rights in Roe v. Wade, when the text itself does not explicitly say so.