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Tuesday, March 18, 2008

Living Words or Dead Words?

[I would like to share this letter to a friend with Baithak readers]

Dear Yasmin:

In "Defending Our Living Constitution," Kirsten Levingston advances interesting arguments while criticizing Justice Scalia's criticism of the idea of a "living constitution." I smiled as I read this.

While the main thrust of her arguments are over interpreting (a written) Constitution of the United States, I recalled our conversations of the past year.

I thought of the first two centuries and a half of Islam. And the efforts to close off "interpretation" since then. And the even more disastrous efforts of the Jahilia who waste no effort to 'push the baby back into the womb.'

How can a document that has relevance for all times be alive at one time and dead at another?

And then 9/11 occurred which we both agree is the best thing to have happened for Muslim reawakening.

Your response to this would find its way here:)




Defending Our Living Constitution

By Kirsten D. Levingston

One wonders whether Justice Scalia appreciated the geographic and historic context in which he delivered his recent speech in Missouri criticizing the idea of a "living constitution." The Justice, a self-described "originalist," believes judges should interpret the Constitution by discerning the founders' intentions when they wrote it. Scalia rejects the notion of a "living constitution," in which the text and values inherent in the founders' words are interpreted in the context of modern challenges and conditions. "The Constitution does not change," Scalia said in Missouri. "It means today what it meant when it first was written. … It does not morph." The Justice has delivered remarks like these many times. Google "living constitution" and "Scalia" and you'll see what I mean. Still, this line of argument suggests the Justice either misunderstands or mischaracterizes the whole notion of the "living constitution."

Acknowledging a "living constitution" does not condone usurpation of the legislative function by judges who substitute their desired outcomes for those achieved through the political process. Where the Constitution's text is unambiguous, that text controls. But where provisions are unclear, it is entirely proper for courts to consider the broader values underlying the Constitution, like democracy, equality or privacy, in deciding what's constitutional and what's not.


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