It's like clockwork. Whenever conservatives propose a constitutional amendment, progressives suddenly rediscover the delicate gears of the Constitution and the horrible dangers of "tinkering" or "tampering" with its precision craftsmanship. Consider the sudden brouhaha over the idea of revising the 14th Amendment to get rid of automatic birthright citizenship (which would make us more like that alleged progressive nirvana known as "Europe," by the way). Here's Angela Kelley of the liberal Center for American Progress on Sen. Lindsey Graham, who started the amendment chatter: "He's not one to tamper with the Constitution, so I'm surprised he would even suggest this.""While everyone recognizes that there are problems with our immigration system in this country," Elizabeth Wydra of the progressive Constitutional Accountability Center tells NPR, "my perspective is: Let's try to fix this through legislation and not tinker with the genius of our constitutional design."
But wait a second. Progressives love to tinker with the constitutional design. They simply do it by stealth, by appointing Supreme Court justices such as Elena Kagan, who, her testimony notwithstanding, everyone knows will treat the Constitution like Felix the Cat's magic bag; when she searches the document hard enough you know she'll find what she's looking for.
But when conservatives who talk about reverence for the Constitution also want to update it in a way that is actually consistent with the "genius of our constitutional design," they are hypocrites and radicals.
Liberal devotees of the "living Constitution" always made a fair point. The Founding Fathers never envisioned a world with jet planes, split atoms, stem cell therapies, one-click porn or MTV's "Jersey Shore." Similarly, the ratifiers of the 14th Amendment would be stunned to learn, in July of 1868, that they had just created an adamantine right for homosexuals to marry one another and receive state benefits to boot, as a federal judge in California recently decided (overruling, I might add, the will of California voters).
Hence, liberals claim, we need an evolving Constitution that, as President Obama writes in "The Audacity of Hope," "is not a static but rather a living document, and must be read in the context of an ever-changing world." But as legal analyst Ed Whelan has noted, this "living document" argument is a straw man. Of course justices must read the document in the context of an ever-changing world. What else could they do? Ask plaintiffs to wear period garb, talk in 18th-century lingo and only bring cases involving paper money and runaway slaves?