Pros and Cons to a written Constitution

[CatholicSage]

I've recently thought a bit about the differing constitutional styles of America and Britain, and I have to say that I've been leaning more towards the British view than I would have thought. Of course, having a single written constitution has the benefits of relative simplicity and clear statements of governmental and legal functions, but I don't think that anyone back in 1789 realized how annoying some people and groups can be because of stupid interpretations and loopholes in this Constitution.

Think about it: if our Constitution were based on tradition and the simple status quo with a couple of documents thrown in, the ACLU would have little to corrupt, there wouldn't be such a fuss about religion in school, and there would be no quibbling about the precise role of the federal government.

On the other hand, basing the Constitution on the status quo could have made injustices in society last longer, namely slavery and then segregation. What do all you political historical types think about this, this wonderful first (hopefully!) post in the political history forum?

[TheOneAndOnly]

On the other hand, basing the Constitution on the status quo could have made injustices in society last longer, namely slavery and then segregation.

What makes you say that? Britain outlawed slavery in the Empire years before America. And we didn't fight a Civil War over it.

[CatholicSage]

It outlawed the slave trade, which seems quite a bit easier. What I mean is that a constitution based on the status quo would make it difficult to uproot established social institutions, even those that are morally wrong.

[Da Lone-Warrior]

What makes you say that? Britain outlawed slavery in the Empire years before America. And we didn't fight a Civil War over it.

Slavery wasn't that important to Britain's economy. They had a good pool of relatively cheap free labor to work in its factories. And its not like they turned away cheap US cotton that was slave-raised.

It was with the US constitution that the notion of a written constitution was developed. Before that, constitution was understand as the nature of checks and balances within the gov't. I.e., the mix of monarchy, aristocracy and democracy(or more accurately plutocracy) that existed.

dlw

[Jimmy Higgins]

What I mean is that a constitution based on the status quo would make it difficult to uproot established social institutions, even those that are morally wrong.

Thank goodness. I completely agree. Abortion would be legal and accepted based on this sort of Constitution. (See Roe v Wade which is below)

3. The common law. It is undisputed that at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy 20 -- was not an indictable offense. 21 The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. 22 This was "mediate animation." Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.

Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide. 23 But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke took the position that abortion of a woman "quick with child" is "a great misprision, and no murder." 24 Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view. 25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime. 26 This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, 27 others followed Coke in stating that abortion of a quick fetus was a "misprision," a term they translated to mean "misdemeanor." 28 That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.

[Soundsurfr]

Think about it: if our Constitution were based on tradition and the simple status quo with a couple of documents thrown in, the ACLU would have little to corrupt, there wouldn't be such a fuss about religion in school, and there would be no quibbling about the precise role of the federal government.

Sounds like a nightmare to me.

[One Bad Pig]

I've recently thought a bit about the differing constitutional styles of America and Britain, and I have to say that I've been leaning more towards the British view than I would have thought. Of course, having a single written constitution has the benefits of relative simplicity and clear statements of governmental and legal functions, but I don't think that anyone back in 1789 realized how annoying some people and groups can be because of stupid interpretations and loopholes in this Constitution.

I just finished reading The Federalist Papers. In No. 85, Alexander Hamilton argues against a Bill of Rights in general (and freedom of the press in specific); he considered the Constitution itself to be a Bill of Rights.

Think about it: if our Constitution were based on tradition and the simple status quo with a couple of documents thrown in, the ACLU would have little to corrupt, there wouldn't be such a fuss about religion in school, and there would be no quibbling about the precise role of the federal government.

The federal government has quite overstepped its bounds, IMO. The Constitution spells out what the federal government has authority over, and leaves everything else to the states.

This is what the Constitution says about religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The whole fuss about religion in school comes from the idea of "separation of church and state" that Thomas Jefferson wrote about in a personal letter written while he was president.

[Jimmy Higgins]

This is what the Constitution says about religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The whole fuss about religion in school comes from the idea of "separation of church and state" that Thomas Jefferson wrote about in a personal letter written while he was president.

Really? Well who used that letter? Why was it so important? The whole fuss with schools comes from a letter by Jefferson? Well seeing that the letter by Jefferson written to a Danbury group that was cited by the US Supreme Court case, Reynolds v United States, in 1878 I'd have to say there is room for disagreement with your stance.

What exactly do you disagree with in Reynolds v United States? You for bigomy?

[One Bad Pig]

Really? Well who used that letter? Why was it so important? The whole fuss with schools comes from a letter by Jefferson? Well seeing that the letter by Jefferson written to a Danbury group that was cited by the US Supreme Court case, Reynolds v United States, in 1878 I'd have to say there is room for disagreement with your stance.

What exactly do you disagree with in Reynolds v United States? You for bigomy?

I am not for bigamy, but I disagree with the court's referencing that letter. Freedom of religion doesn't mean freedom to break laws, which is what that case determined. What has that to do with "separation of church and state"?
Freedom of religion does not mean freedom from religion, which is what that letter implies. The purpose of [that phrase of] the First amendment was to prevent the government from legislating that one religion was the only allowed religion, and that no religion could be outlawed. This case defined that to mean that only religious beliefs could not be outlawed; religious acts (such as bigamy or child sacrifece) could, however, be legislated against.

[Socrates]

I've recently thought a bit about the differing constitutional styles of America and Britain, and I have to say that I've been leaning more towards the British view than I would have thought.

Good for you. British Common Law, based on the Bible, emphasizes responsibilities, as well as complete freedom within those limits. But the American system is based on "rights" instead of responsibilities. That's why there are shocking cases where a girl was raped in the street and no-one helped, or someone drowning because no-one helped.

But decide that something is a "right", then it's a small step to force others to satisfy this "right". It's no accident that bills of rights have always escalated litigation.

Of course, having a single written constitution has the benefits of relative simplicity and clear statements of governmental and legal functions, but I don't think that anyone back in 1789 realized how annoying some people and groups can be because of stupid interpretations and loopholes in this Constitution.

Most of the problems are due to corrupt liberal activist judges advancing the fiction that the constitution means what they like, instead of what the originals writers meant.

Think about it: if our Constitution were based on tradition and the simple status quo with a couple of documents thrown in, the ACLU would have little to corrupt, there wouldn't be such a fuss about religion in school, and there would be no quibbling about the precise role of the federal government.

And there would be no fuss about appointing justices, because regardless of personal views, they could be trusted to apply the law not make law. See Scalia: Judicial Hearings Too Partisan.

[Socrates]

What makes you say that? Britain outlawed slavery in the Empire years before America. And we didn't fight a Civil War over it.

Exactly!! Britain was truly the "land of the free" while the USA still had slave states. And what's more, Britain used the might of its navy to "impose its morality" of anti-slavery on others!!

[CatholicSage]

And how do you respond to Jimmy's point about abortion in common law, Soc?

[Bob Jenkins]

And how do you respond to Jimmy's point about abortion in common law, Soc?

I suspect that a discussion of abortion will lead the thread astray. However. indulge me in answering the question.

I am also not sure that the dates track well, but common law seems to parallel the changing view of the church regarding abortion beggining in the 5th century till the Catholic Church, in 1869, eliminated the distinction of the fetus concerning "quickening".

Abortion:
Ancient Christian Beliefs

[Alden]

Really? Well who used that letter? Why was it so important? The whole fuss with schools comes from a letter by Jefferson? Well seeing that the letter by Jefferson written to a Danbury group that was cited by the US Supreme Court case, Reynolds v United States, in 1878 I'd have to say there is room for disagreement with your stance.

What exactly do you disagree with in Reynolds v United States? You for bigomy?

It would seem that One Bad Pig is speaking from more of a strict constructionist standpoint. Separation of church and state is not in the constitution, the establishment clause is. I like the intent of the establishment clause. I don't think that state-endorsed churches are a good thing. I agree with the founders' desire to prevent the practice from continuing. However, I don't think that they would have intended for the political climate to become such that there are lawsuits to remove publicly displayed manger scenes. The separation nonsense has gone too far.

Recently, there was a cross removed from public land in my area. It had been put there sixty years ago (when the land was totally undeveloped) by a man who was grieving the loss of his son at sea. It was a memorial. It was not the government saying, bow down and worship Jesus according to the Lutherans, Calvinists, etc.

[Jimmy Higgins]

And how do you respond to Jimmy's point about abortion in common law, Soc?

Funny how cowardly the pompous ... and short Socrates can become when he has no ammo. He just runs and runs.