The living Constitution, which has performed innumerable feats of jurisprudential prestidigitation, has accomplished a miraculous new trick during the national debate over NSA surveillance. It faked its own death.
To do this, it needed the help of its numerous magicians' assistants in the Democratic Party (with some audience participation by Republicans, too).
If you recall, the "living Constitution" is the notion that the meaning of the Constitution changes over time. One day nine justices simply wake up, and when they arrive at work that day, they discover that the words in the document they studied their entire adult lives suddenly mean something new and fresh. It's a bit like a science experiment where you try to grow mold in a Petri dish. A dead (or "enduring") Constitution is simply one that means what it says and says what it means. Obviously, this is a gross generalization, but you get the point.
Al Gore summarized the almost universal view among leading liberals when in 2000 he promised, if elected, to appoint judges "who understand that our Constitution is a living and breathing document," and who grasp that "it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."
Notice how Gore used the word "understand" instead of "believe," suggesting that the living Constitution is a fact of life and those who don't see it are ignorant as opposed to merely wrong. This may seem like a pedantic observation, but it does capture in miniature the smugness of liberals who, ever since Woodrow Wilson mocked "Fourth of July sentiments," have treated belief in the living Constitution as a sign of basic intelligence.
Enter the recent donnybrook over the NSA's warrantless wiretapping. Suddenly, Al Gore - still largely speaking for the liberal establishment - is saying that the White House's evolved understanding of constitutional requirements amounts to "disrespect for America's Constitution which has now brought our republic to the brink of a dangerous breach in the fabric of the Constitution." Suddenly, the Constitution isn't alive, it's a fabric. Liberals have had an overnight love affair with the founders, invoking good old Ben Franklin and his notion that "Those who would sacrifice liberty for security deserve neither."
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