I found this commentary interesting.
DUNCAN: Supreme Court benchmarks
The Constitution - evolving or enduring?
By Richard F. Duncan Sunday, May 3, 2009
Now that President Obama has become the judicial-nominator-in-chief, we can expect to hear a lot more about the liberal judicial theory of the "living, breathing" and "evolving" Constitution. Of course, the Constitution is not really alive. Nor does it breathe. But does it at least evolve? And if so, how, so?
Some commentators reject an "original meaning" theory of interpreting the Constitution in favor of a "living, breathing" theory. For example, Erwin Chemerinsky, dean of the law school at the University of California at Irvine, says, "Non-originalists believe that the Constitution's meaning is not limited to what the Framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation."
Is this really a theory of evolution? Or is it more honestly a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation, if you please, by shifting Supreme Court majorities. Thus, when Mr. Chemerinsky says new constitutional rights "evolve by interpretation," he means these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than five unelected lawyers serving lifetime appointments on the Supreme Court.
When the court speaks of the Constitution evolving, is that really an attempt to mask or conceal "what's going on," as Marvin Gaye might have put it? Why doesn't the court simply admit it is making up new constitutional provisions when it calls into being some new rule never intended by the Framers? Could it be, perhaps, because the theory of an evolving Constitution is a fig leaf that covers, if only imperfectly, the judicial activism that results when the court makes, rather than enforces, constitutional law?
Some proponents of the living Constitution criticize originalists as supporting a "dead" Constitution. But Justice Antonin Scalia likes to respond by saying that originalists view the Constitution not as dead but rather as "enduring."
"The Constitution," Justice Scalia says, "is not a living organism, it is a legal document. It says something and doesn't say other things." Proponents of an evolving Constitution want matters to be decided "not by the people, but by the justices of the Supreme Court." In other words, as Robert H. Bork puts it, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."
Mr. Obama has said he wants to call a truce in the culture war and adopt a new, less divisive, more bipartisan, style of governing. He will have a wonderful opportunity to live up to his word when he nominates new justices of the Supreme Court.
Will he appoint judges who view the evolving Constitution as a means of winning the culture war by, for example, creating a new constitutional right to same-sex marriage or partial-birth abortion that will trump state laws defining marriage or restricting partial-birth abortions? Or will he seek to get beyond the divisive issues of the culture war and take the road less traveled by appointing judges who are committed to enforcing the original meaning of the written, enduring Constitution?
I hope for the best, but I fear it will be difficult for Mr. Obama to take politics out of the judicial selection process.
Richard F. Duncan is the Welpton Professor of Constitutional Law at the University of Nebraska College of Law.
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