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More On Dead Constitutions


Kenneth Cavness over on Cogicophony responds to
Jonah’s defense of the Dead Constitution with the following from Thomas Paine:

There never did, there never will, and there never can exist a
parliament, or any description of men, or any generation of men, in any
country, possessed of the right or the power of binding and controlling
posterity to the ‘end of time,’ or of commanding for ever how the world
shall be governed, or who shall govern it; and therefore, all such
clauses, acts or declarations, by which the makers of them attempt to do
what they have neither the right nor the power to do, nor the power to
execute, are in themselves null and void. . . . along these lines>

Paine’s observation misses the point. The reason to respect the “dead”
constitution is because it makes a good system for the living, not
because the dead have any authority over us. It is good for us today
(as it was good for the founders way back when) that present-day
legislatures not be able to define the limits of their own powers, or
that judges may not expand the powers of legislatures beyond what is
specified in the “dead” Constitution. One of the ways to accomplish end
this is to put their powers in writing and adopt a rule that the
legislature or judges cannot change the writing on their own. In short
we should be committed to original meaning because we, right her right
now, are committed to a written constitution. And we should be
committed to a written constitution because it is best for the rights
and well-being of the people right here, right now, that legislative
powers be limited and judges not able to expand this power on their own


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