Jonah Goldberg

In Washington, conservatives and liberals are quietly loading up on drinking water, D batteries and extra ammo, in preparation for the coming battle over judges. Ralph Neas himself has been seen by the campfire carving notches into the stock of his rifle, muttering, "Pain don't hurt." No one knows when the fight's coming, but everyone knows it is. But while we're digging fresh foxholes and listening to our Vera Lynn records, waiting for the blitzkrieg, it might be worth taking a step back to look at the big picture.

This is a battle between the forces of life and death, and, as inconvenient as it may be to the marketing efforts of abortion opponents, we are resolutely on the side of death. For we are those who believe the only good constitution is a dead constitution.

We've all heard about how great living constitutions are. The most extreme, but essentially representative, version of this "philosophy" can be found from the likes of Mary Frances Berry or the Los Angeles Times' Robert Scheer. They matter-of-factly claim that without a "living" constitution, slavery and other such evils would still be constitutional. This is what leading constitutional legal theorists call "stupid." The constitutionality of slavery, women's suffrage and the like were decided by these things called the 13th, 14th and 15th Amendments. Also, contra feminists, women got the vote not through a living constitution but by the mere expansion of the dead one - via the 19th Amendment.

This is not to say the "living constitution" is a myth. "It's alive!" all right, as Dr. Frankenstein might say. Supreme Court justices have found the most interesting things swimming in the penumbras and emanations of the U.S. Constitution. The point is merely that it is batty to argue that constitutional change is impossible unless we view the Constitution as a completely viable life outside the womb of historical context and principled meaning.

The more reasonable arguments for a living constitution revolve around the view that society is changing too fast and the Constitution-as-written must grow to stay relevant. Al Gore said in 2000, "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."

And it's obviously true that the founders never envisioned a world of embryonic stem cells or retinal-scan cat doors (coming soon!). And there are good answers for what the Supreme Court should do when the Constitution is truly silent on an issue. For example: It should stay silent.

Jonah Goldberg

Jonah Goldberg is editor-at-large of National Review Online,and the author of the book The Tyranny of Clichés. You can reach him via Twitter @JonahNRO.
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