[venomsnake]

I know this is a bit offtopic but why is the obsession with the semantics and the literal text of the Constitution?

It is just words on paper created by mortal men that certainly were unable to see 200 years into the future. And with the advance of technology some parts will begin to show their age. Both the government and the citizens can do a lot of things right now that they could not foresee.

And yet the idea of the changing, expanding and clarifying it seems to be a taboo in modern US politics. People are only allowed to interpret it, but not allowed to talk about changing it.

It is as close to theology as I could not imagine. I don't know of any other country that treats its founding laws that way.

[saraid216]

> I know this is a bit offtopic but why is the obsession with the semantics and the literal text of the Constitution?

The literal text of the Constitution is the current law of the land. That's why its interpretation continues to be relevant. I'm perfectly fine with amending the fuck out of it in theory, but I can agree with most people that such amendments need to be carefully reasoned about before being enacted.

I, for one, don't consider the Constitution to even be correct. I consider it to be real. It's not really different from a man saying, "The sun comes out at night." I feel obliged to correct him, but to do that, I have to acknowledge that he said it.

> It is as close to theology as I could not imagine.

Your mistake is mostly in imagining that it is not theology. It is. [1]

Many people, most notably libertarians, have been co-opted by the refrain of "what the Founders originally meant" and "what the Constitution originally said" as a way to justify their policies.

This is made more confusing by the presence of "originalist" jurisprudential theory. [2] But this originalism is also an outgrowth of dominionism.

Libertarians would normally be expected to oppose this kind of trend, but their label was part of the co-opting. The result is that there are libertarians and Real True Libertarians, just as there are Christians and Real True Christians and Republicans and Real True Republicans (read: not a RINO).

All of this is dominionism. It's arguable that a lot of this is just a wave of echoes from the Reconstruction after the Civil War, which was unprecedented in a lot of ways (the rise of the central executive using what was unquestionably force to suppress rebellion and secession; the breaking of the institution of slavery on a national scale; the deliberate and callous humbling of the losers in the war), and merely delayed until the 1980s because of the two World Wars and Vietnam.

  [1] http://en.wikipedia.org/wiki/Dominion_Theology
  [2] http://en.wikipedia.org/wiki/Originalism

[dragonwriter]

>It's arguable that a lot of this is just a wave of echoes from the Reconstruction after the Civil War, which was unprecedented in a lot of ways (the rise of the central executive using what was unquestionably force to suppress rebellion and secession; the breaking of the institution of slavery on a national scale; the deliberate and callous humbling of the losers in the war), and merely delayed until the 1980s because of the two World Wars and Vietnam.

It wasn't so much "delayed" so much as faded over time without completely subsiding until, as the post-WWII realignment of the major parties progressed, it eventually became political useful for one of them to deliberately expend resources and propaganda efforts to fan it, starting with Nixon's "Southern Strategy".

[rayiner]

You have to put the EFF's action in procedural context. They're at "Plan B." They've lost "Plan A," which was the political debate. Voters, broadly, are mistrustful of "hackers" and don't see a problem with searching computers at the border. Certainly, my mom doesn't see a problem with such searches. Now, the EFF is coming along and asking a federal judge to tell my mom and all the voters like her that they can't do what they want to do, all because of some "words on paper created by mortal men" 200 years ago. This is "Plan B." At this stage, the rules are different and more restrictive. To overcome the democratic will, you not only have to show that your point of view is better, but you have to show that this 200 year old document requires people now, 200 years later, to act a certain way. That procedural posture leads to "the obsession with the semantics and the literal text of the Constitution."

As for why this spectacle doesn't happen in other countries, it's largely because in those countries there is no "Plan B." If you lose at "Plan A" you're done. In the U.S. you have a "Plan B" because we have a judiciary that is a co-equal branch of government. Other countries have constitutional courts, but those courts have very limited jurisdiction and do not function as a co-equal branch of government. In the U.S., you have 94 federal district courts, 13 courts of appeal, and 1 Supreme Court, any one of which can declare a state or federal law unconstitutional. Moreover, unlike judges of constitutional courts in other western countries, American federal judges have the extensive powers of common law judges. They can not just declare laws unconstitutional, but force public officials to take affirmative actions to remedy violations.

The U.S. federal judiciary is, as an institution, extremely anti-democratic. It can not only defeat the democratic will of a state or even the national legislature, but do so in a way that binds all future legislatures. The power to bind legislation in the future is one that no legislature in the U.S. possesses. The obsession with "the semantics and the literal text of the Constitution" is the flip side of this anti-democratic power. The judiciary derives its legitimacy from its role interpreting the text of the Constitution. To the extent that it strays from that text, it loses legitimacy.

[venomsnake]

Thanks for the reply, but I think you slightly misunderstood what I was asking. It was not a criticism over the way judiciary are doing their work.

What I was wandering is why there is no scrutiny over the constitution itself - are parts of it relevant still, could they be bettered and so on. Quick checking of the years of the enactment of the various amendments shows that after the initial flurry of activity there is some calm period for the country to settle down - but then with the changing society various amendments are enacted and we have roughly one amendment every 5-10 years after WWI until the seventies.

And then suddenly that stops for 42 (so far) years. So in times of unprecedented technological and social change there is no perception that the document itself must change.

Is the text about well regulated militia needed for security still relevant when you have professional huge standing army ?

Do we need new constitutional right in the digital era and not have to rely on the pity of SCOTUS to extend the current we have?

So basically my question is why the constitution is considered sacrosanct and perfect, and not something with flaws and shortcomings that should be fixed?

[saraid216]

> we have roughly one amendment every 5-10 years after WWI until the seventies.

> And then suddenly that stops for 42 (so far) years.

I missed this earlier, but you've got your facts wrong. The last ratified amendment was the 27th in 1992, or 21 years ago. The 26th was 21 years before that in 1971.

> Is the text about well regulated militia needed for security still relevant when you have professional huge standing army ?

The Wikipedia page has a lovely summary of Judge Scalia (and originalist) contorting himself to pieces over it. It would be entertaining if it weren't law.

[rayiner]

What I'm saying is that the most obvious way to change the Constitution, judicial interpretation, is circumscribed by the considerations I mentioned.

Outside of that, you'd need a Constitutional convention or a series of amendments. But nobody wants to open that can of worms. You'd be as likely to see an amendment banning abortion as one guaranteeing privacy. The equal protection clause of the 14th would be on the chopping block. People would seriously propose repealing the 13th amendment.