Over the Fourth of July weekend, Supreme Court Justice Sandra Day O'Connor was nearly squished. A giant beam nearly fell on her as she sat on the stage during a celebration of the U.S. Constitution. While I wish no harm to befall O'Connor, there was a Tom Wolfe flavor to the near-death mishap. For a brief moment, it felt like the real authors of the Constitution were reaching out to punish the personification of our "living Constitution."
After all, O'Connor is the Constitution these days. Because she's almost always the tie-breaker in every close vote on the court, she's been dubbed "the most powerful woman in America" by The New York Times and National Review alike.
As Charles Krauthammer put it recently, "The Constitution is whatever Justice Sandra Day O'Connor says it is. On any given Monday." That's because O'Connor changes her mind all the time. Seventeen years ago, for example, she thought anti-sodomy laws were constitutional. Now she doesn't. And since the words on the constitutional parchment haven't changed, it's pretty clear that the woman behind the curtain is the real Wizard of Oz.
The phrase "living Constitution" goes back a long time, though I can't find the source (if you know it, let me know). The idea is simple. Al Gore summed it up pretty well when he was asked during the 2000 campaign what kind of judges he'd appoint. "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."
The most popular argument against a "living Constitution" is also pretty simple. Once you accept the proposition that the words on the page can mean what you want them to mean, well, then the words on the page matter less than the views of those we select to interpret them. Once this happens, the Court in effect becomes an unelected and unaccountable legislature.
This is why many conservatives think champions of a "living Constitution" are really just cheaters. As Judge Robert Bork noted in The Tempting of America, "The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically."
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