There is a fascinating interview with newly retired Justice Stevens on the NPR site. Stevens is an active 90 year old who plays tennis several times a week and who spent 35 years on the Supreme Court. Today was the official first day of retirement since the current Supreme Court recess was over. Stevens was appointed by President Gerald Ford.
The interview includes the scope of Steven’s life experiences, where he sits watching Babe Ruth hit a homer during the 1932 World Series against the Cubs to his throwing out the first pitch of a Cubs game when he was 85 years old.
From the NPR interview:
A Fundamental Dispute
Stevens and Scalia have gone at each other on many subjects, but their core disagreement is over Scalia’s espousal of originalism — the idea that the Founding Fathers intended the Constitution to mean only what it meant at the time of enactment, no more and no less. Or, as Scalia puts it, “the Constitution that I interpret and apply is not living, but dead.”
Stevens disagrees. “To suggest that the law is static is quite wrong,” he says. Stevens argues that “the whole purpose was to form a more perfect union, not something that’s perfect when we started. We designed a system of government that would contemplate a change and progress.”
This clash of views is exemplified in a 1990 opinion Stevens wrote, which invalidated the Illinois patronage system as a violation of employees’ First Amendment rights to freedom of association.
Stevens notes that when he first encountered the question, he thought the claim had no merit. After all, as Justice Scalia would subsequently observe, patronage existed at the time the republic was founded. But Stevens, upon examining the question, reached a conclusion exactly opposite of what he originally thought.
I actually listened to it a on NPR when he was first on and I was totally entralled. His explanation of the constitution as a “living document” was fascinating and made total sense to me.
It’s a living document only because the founders left a way for amendments to be made. That doesn’t mean that the content of the document means what it doesn’t mean, or what an activist judge think it SHOULD mean. It means what it meant when it was written, unless an amendment is passed and ratified.
Remember that there are those of us who think that the constitution is a living, not a dead document.
Also activist judges are ones we don’t agree with. I thought the corporation decision was ‘activist.’
Constitutional law is not case law nor is it based upon precedent, as least as I see it. The Constitution should be considered the rules. As such, it should not be re-interpreted in the middle of the game except as the rules, themselves, authorize.
Since I’m not a lawyer, nor play one on TV, I may be wrong. First time for anything…..
I’d agree with MH for the most part if we stopped taxing corporations like people. 😉
Another non-lawyer weighing in here; but, what the hey, even half the lawyers are said to be “wrong” in the adjudication of cases.
I say the Constitution is a “living” document simply because we consult it at almost every turn. The argument comes when we talk about “change” to that Constitution. I think that everyone here could agree that the writers of the Constitution, just by including a scripted way to amend that document, were admitting that they did not consider themselves infallible and that the “people” at some point might choose to make changes. Their lack of infallibility was demonstrated almost immediately when they found that some states would not ratify the document without a specific bill of rights included in it. Hence the first ten amendments. Also, I think many who participated in the writing and the ratification knew that they only got that document approved through some rather severe contortions called compromises, without which we might not have had a constitution in 1787. I also think that some of them believed that the proper corrections would eventually come, just not at that time.
However, I personally don’t believe that these same writers felt the document should be subjected so easily to “change” through a process outside the scripted amendment procedures. Even those scripted amendment procedures were designed to prevent easy changes. I also think you have to look at “change” as having two definitions: (1) changes to correct deficiencies in the original document, many created by those “compromises” which enabled its existence to begin with; and (2) changes which alter the very form of governance which the Constitution sets out. It seems to me that, if you set your cap too much in the direction of the second definition, you could wind up with a document which reminds me of the fellow who once claimed to own Abe Lincoln’s original axe. Only problem was that the axe had had six new heads and nine new handles.
When I look personally at many of the amendments to the Constitution, I come to the conclusion that they were not changes in the sense that they rewrote the basic tenets of governance. I see them more as a process by which we went back to the original actions of the writers and found that mistakes had been made in the effort to seek compromise and that we had too often as a people let those mistakes ride too long without correction. We were, in effect, going back in many cases to an even more historic document, the Declaration of Independence, in which we had ascribed to the stated belief that “all Men are created equal.” During the writing of the Constitution and for many years after, we neglected often to adhere to our own founding philosophy. Therefore, were not amendments XIII, XIV, XV, XVII, XIX, and XXIV especially not efforts in a sense to go back to that philosophy and make corrections which would put our most important governing document and our own actions in better compliance with that philosophy? Personally, I see them as needed corrections to our original course and not the setting of an entirely new course. Some of the other amendments, e.g. the direct election of senators, could also be considered as technical changes more fitting to the exercise of democracy by the people themselves — also possibly a return to the original philosophical roots.
These are points to be argued to be sure. I kind of like the way Regis de Trobriand expressed it after Lincoln signed the Emancipation Declaration. De Trobriand was a French immigrant, a lawyer, and a novelist, who had come to America in 1841 at age 25, married an American woman, and become an American citizen. At the outbreak of the Civil War, he became the commanding officer of the 55th New York Infantry, the so-called “Gardes Lafayette,” and rose to the level of major-general. He and his troops were at Feredericksburg, Petersburg, and Appomattox. But they and De Trobriand himself are most celebrated for Gettysburg, where they lost every third man in their unit in a stalwart and unyielding defense at the Wheat Field.
When Lincoln announced the Emancipation Proclamation, De Trobriand wrote the following: “It was no longer a question of the Union as it was that was to be re-established. It was the Union as it should be — That is to say, washed clean from its original sin…We were no longer merely the soldiers of a political controversy. We were now the mssionaries of a great work of redemption, the armed liberators of millions…The war was ennobled; the object was bigger.”
My personal view is that many of the changes to our Constitution have been, indeed, belated efforts at “redemption” and the cleansing of “original sin” as opposed to setting an entirely new course of governance which departs from the basic precepts of that Constitution. I also think that, if we get used to changing that document so easily and outside the prescribed procedures in a context of divided opinion on the issues of our own time, we may well be endangering the foundation of our system and not wake up to that fact until we are so divided that we can no longer come together on anything. Just some thoughts.
Wolverine, how do we decide which of the justices was correct and which wasn’t? I generally don’t like Constitutional amendments. Only 27 in all these years–hard to do which is a good thing.
Some decisions are good, some are bad. I am probably a centrist on this also…like most things except reproductions. (but I have some real conservative streaks there too.)