Finally, imagine some other conservative rulings using the living constitution.

US v Goodridge 2009
THOMAS:Seeing as how Congressional findings have shown that homosexual couples tend to have compartively larger disposable incomes, spend money in multiple states through travel, have businesses or jobs that involve them conducting transactions across state lines, affect the flow of goods and services across state lines and impact interstate commerce in many other ways, we hold that consistent with Wickard v Filburn, all of these effects when taken in the aggregate do have a substantial effect upon interstate commerce, and consisten with the evolving nature of the commerce clause and the continuing quest for dignity and morality, and therefore Congress was well within its authority to ban Homosexual marriage and relationships and criminalize them nationwide. US v Lopez overruled.IT IS SO ORDERED

This living constitution is great. The commerce clause means what I want it to mean.

orTawrence v Lexas 2011
SCALIABased on the evolving standards of decency and the fact the Constitution does not mean today what it meant in 1868, and we must adapt it to the times, we hold that among the priveleges of a US citizen guaranteed by the 14th amendment is the right of citizens to discriminate against homosexuals in all facets of life. Romer v Evans and Lawrence v Texas overruled.

Gomes v Utah 2010
ALITOWhile the "assistance of counsel" may have meant one thing in 1791, today it means something different. Consistent with evolution and the changing times, we hold that assistance of counsel does not mandate a lawyer, but rather provides for a minimum of advice to the accused. The State has fulfilled its obligation once it has granted the accused one meeting with anyone, attorney or not, that explains the nature of the charge and lays out what options he has going forward. Gideon v Wainwright overruled.IT IS SO ORDERED

I could go all day. Do you really like the living constitution now? Or it's only ok when it's your guys that have 5 votes? What happens if Rush Limbaugh's guys get 5 votes? Will you like the living constitution then?

The bottom line is that you have a fundamentally different theory of what the Constitution means and how it works than I do. That's fine. Your entitled to your opinion

Of course because the Govt has the power to do something doesn't mean they are required to use it. Duh. The govt has the power to indict, it doesn't mean they are required in every case. They have the power to declare war. It doesn't mean they are required to do so. The Govt only has powers that are granted to it by the Constitution. The Constitution clearly grants and recognizes the power of the Govt to issue Capital sentences, if they choose to do so.I never said, the death penalty is mandatory. That's absurd. It isn't in states either. If MA wants to abolish the death penalty, by all means they have every right to do so. But if TX wants to maintain the death penalty, the SCOTUS has no authority or right whatsoever to bar them from doing so.When did I ever say the death penalty is required?

Our argument is this: You claim the Constitution forbids the govt or the states to use the death penalty, if they so choose. I claim the opposite and that there is no textual basis for your claim but that there is an extratextual basis involving "aspirational" arguments, "evolving standards of decency" and other things that give carte blanche to judges to rule as they desire.You've yet to provide any textual basis to support your claim. Cite me the Constitutional text that forbids the govt or the states from using the death penalty. You can't.

They didn't put some amorphous principle in. The 8th amendment comes directly from the common law and the Revolution of 1688. Blackstone explicitly defined it. All the framers knew what it meant. It's basic ConLaw that when a term of art is used or reference is made to a term from the common law, that the term is to be construed according to its commonly known meaning, not some greater pronciple it embodies or some evolving standard.

A better question for you would be, if the framers wanted to ban the death penalty, why didn't they simply "Congress shall pass no law providing for a pnishment of death" or "The right to life shall not be violated, and no capital punishments shall be issued" or an unabiguous wording? How come they didn't do that? They did it in all the other amendments.

If you take your approach that when the framers said A, they really meant B, or what A might mean in 200 years, then the entire Constitution is worthless. Words and phrases cease to have meaning and the Constitution means whatever Bill Brennan says it means, not what the text was ratified to mean.Let's use your approach and imagine a conservative activist Court.

Imagine Justice Scalia writing for the Court:Even though it is apparent that at the time of the ratification of the 5th and 14th amendments, the term "person" was not understood to include zygotes, embryos, or fetuses, "evolving standards of decency" and our continuing quest to fulfill human dignity and allow each person to define themselves according to sweet mysteries of life, have led us to conclude that the time has come for a reassessment.

The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death.Therefore, consistent with the 5th and 14th amendments guaranteeing all persons a right to life, and our fulfilling of the promise made to all Americans, we hold that Roe v Wade and PP v Casey were grievously wrong decisions and we correct those mistakes by hereby invalidating all state laws permitting abortions and will now now call on those states to enforce and respect the dictate of the 14th amendment.

Further we hold that as per the 5th amendment, the federal govt is also hereby compelled to use its powers to end the practice of abortion. In sum, the 5th and 14th amendments now compel a nationwide ban on abortion.We shall not again canvass the reasons that led to that conclusion. We emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State must treat its persons in a manner consistent with their intrinsic worth as human beings -- and take all measures to prevent acts degrading to human dignity. A judicial determination whether the practice of abortion comports with human dignity is therefore not only permitted, but compelled, by the Clause.It is So Ordered.

Would liberals like that opinion? Would they hail it as a masterpiece of human dignity and freedom? It was cribbed almost word for word from Brennan's death penalty opinions and Dworkin's idea of aspirational meaning.

As a textualist, that opinion would be as offensive to me as the Roe opinion was, perhaps worse. If Justice Scalia were to write such an opinion, he, along with any Justice who joined him should be impeached immediately. In fact, Justice Scalia has explicitly said as much and has stated that becuase he is a textualist, he does not have the authory to write an opinion like that, even though he would most assuredly want to if it was up to him.

Your approach provides no brakes, nothing to constrain a Judge. Under yours and Dworkin's and Brennan's approach, the only thing holding judges back is their own shame.Under my approach, it's the text of the Constiutution that constrains them. You don't like what the text say? Then amend it as per Article V. It's been done.

Exactly. If a Judge interprets "speech" in a certain manner, or that something is implicated by the commerce clause, that's one thing.If a Judge decides that the Govt can ban the posession of arms, or that the 8th amendment bars capital punishment, or that a state can bar women from voting, or that the President can serve three terms, or that a state can issue a bill of attainder or apply laws ex post facto-all things that the Constitution clearly and unambiguously contradicts, then yes, that is an impeachable offense.

To me, the 8th amendment is perfectly clear that it does not ban capital punishment, It's not really even up for debate. Joseph Story and John Marshall would have scoffed at the mere notion of it. as would Hamilton and Madison and all the rest of the framers. It's just as clear the 19th amendment guaranteeing women the right to vote or the bill of attainder clause, or the 35 year age minimum for the President.

What if someone said, well, that 35 year thing doesn't really mean 35. You have to realize that it has an evolutoinary quality to it. It speaks to overarching principles and human dignity. The text changes with the times and the standards of decency. Based on life expectancy, 35 back in 1787 is equivalent to 50 today. So, any one under 50 is ineligible to run for President.That would be just as activist as what Brennan, Marshall, Stevens, Ginsburg, Souter, Breyer, Kennedy and all the other liberals have done.If you want to ignore the text, fine, that's your right. But at least have the courage of your convictions to admit it when you and don't pretend that you're doing anything but that.

Sandy,I agree that here can be disagreement about provisions. Just what is covered by free speech? what is commerce? incorporation doctrine? what is necessary and proper? etc... that's fine. there really is no room for debate on capital punishment, unless, as you stated, one openly admits that they are ignoring the text and deciding based on their own admittedly extratextual standards that only they know and that have no basis whatsoever in the text that was ratified by the people.If you acceot that as a legitimate technique, then the Constitution becomes meaningless and you have judges deciding cases based on what they think the law should be, not what it is. You may be ok with tis with guys like Brennan that agree with you, but I don't think you;d be too happy if Clarence Thomas or Nino Scalia started deciding establishment clause cases or abortion cases based on their evolving standards.

And Brennan and Marshall DID openly admit that they were flouting the text and going with their own views. Marshall said in a speech in Philly that he could care less what the text says because no black people voted for it and because it was written by a bunch of racist, sexist slaveowners.

See:I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago

The 5th AMendment specifically contemplates capital punishment. It would make no sense to include capital punishment if it was banned by the 8th amednment. Capital punishment was well practiced in colonial and early US history. To think that the framers banned it is an activism of the highest order.

The Clinton Impeachment was 100% Constiututional. In the debates over the Impeachment Clause, phrases such as "coruption", "maladministration" and "neglect of duty" were raised before "high crimes and misdemeanors" was settled on.And in the First Congress’ “removal” debate, Madison maintained that the wanton removal from office of meritorious officers would be an act of maladministration which would render the President subject to impeachment.770 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior.771 While conclusions may be drawn from the conflicting statement, it must always be recognized that a respectable case may be made for either view.

If merely cashiering someone merited impeachment, surely perjury and obstructing justice, engaging in phone sex with a WH Intern(which any foreign power could have tapped to threaten nat'l security), arrogantly lying about it on national tv and all of Clinton's other dirty deeds merited Impeachment,

As for Brennan, he willfully abused the Constitution and should have been impeached also. To know that the Constitution allows for capital punishment and still rule that it outlaws it, is such a blatant disregard of the law that it defies any concept of "good behavior".No person shall be held to answer for a CAPITAL, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of LIFE or limb.

Every state in the Union praticed capital punishment. For Brennan to rule that he 8th amednment outlawed it is so blatant a distortion of the Constitution that it merits removal. I mean, one can disagree on the due process clause or the commerce clause. But the capital punishment issue is so clear only one's deisre to impose their own social agenda on the country can explain such devious action as Brennan and Marshall's 8th amendment jurisprudence(not to mention the Court's current liberals+Kennedy).