Along with the nomination of Supreme Court nominee Sonia Sotomayor, comes—once again—the age old judicial question, “Is the U.S. Constitution a ‘living document?” At the American Spectator, Jonathan Witt answers with a qualified “yes”:
This brings us to the central irony. The very people most inclined to gush about our “living Constitution” treat it like a Mr. Potato Head:
Ooh, states rights. Let’s pop that off and replace it with a metastasizing Commerce Clause. Oh, and look here in my pocket. A constitutional right to redefine the age-old institution of marriage. Oh and let’s tack this one on, too—a constitutional right to kill a half born baby and throw whatever’s left in the garbage. If anyone complains, we’ll call it “the constitutional right to privacy.”
It’s time to pause and take the living-document metaphor seriously. Living things have an internal logic, have functional constraints. They aren’t endlessly malleable. You can’t replace grandpa’s liver with a second heart just because you think livers are passé—unless you intend to kill grandpa.