The best example of it in action is the concept of "cruel and unusual punishment." What was cruel and unusual in 1791 is different than it is now. Firing squads and hangings were considered humane, with torturous methods of execution like quartering considered out of bounds.
Today we define firing squads and hangings as cruel and unusual, because that's the way society's morals have evolved. If you apply this kind of thinking to the Constitution as a whole you get the living constitutionalist argument.
Here's an updated version of Voltaire's quote. (Wait though ... shouldn't we first prove that he actually said it? Can anyone prove that it wasn't attributed to him after his death? Are there any original manuscripts that we can prove were penned by him?)
If he were alive today this is what he would have said:
A witty saying proves nothing if it challenges my point of view.
All totally irrelevant to this thread.And of course your like history. Except when it gets in your way. Like how our Founding Fathers slaughtered native americans, stole land, engaged in slavery, labeled political opponents as traitors, dueled to settle policy issues, and supported castration.
“I’m somewhat disappointed that more African Americans don’t think for themselves and just go with whatever they’re supposed to say and think."
- Dr. Benjamin Carson
Voltaire was highly appreciative of irony and I'm sure he recognized the irony of his own quote. Candide is still one of the funniest books ever written, imo. Especially if you're at all familiar with Leibniz's philosophy of this being the "best of all possible worlds", of which the book is a kind of critique.
Anyway, Jefferson felt that every 19 years was considered a new generation, which should be allowed to make it's own laws and rules. His reason for coming up with 19 is sort of convoluted and involves integers of the life expectancy or something like that. What the quote I posted is basically arguing is that if the rules are just, they will be extended by the next generation. In a way it's not unlike Noam Chomsky's idea of collectivist syndicates, which is a reaction to the non-choice we have to follow the law where we're born.
Using Phinz argument "Freedom of the Press", for example, should only apply to newspapers, not modern forms of the press.
Society's morals may have evolved, but the morals of our government have steadily devolved.
The Court also places a bigger emphasis than you would think on popular opinion. They don't want to be too far out of the mainstream because they're concerned about maintaining the Court's authorial position relative to the law. They're quite sensitive to the "activist judges" label, in other words. A decision like Roe vs. Wade, for example, whatever you think of it legally, is not an experience they're enthusiastic to repeat, since making a judgement so far out of whack with the opinion of the guy on the street makes the Court a target, rather than an arbiter.
Last edited by TheWalrus; 05-07-2013 at 04:21 PM.