Myth: The Constitution was intended to change with society, as society changes. Its meaning is very flexible, and so it should be interpreted in such a way to reflect the sensibilities and priorities of the current generation, as well as deal with new problems that can arise that the Founders could not have anticipated.
Truth: The Constitution was intended to change with society, as society changes which is why Article 5 defines that orderly process. “If constitutional protections are but formless inkblots, then no American is truly safe from his or her government.” – Doug Bandow
The Constitution should be interpreted in such a way that it gives the text the meaning it had when it was adopted. In cases where the people of America believe a change should be made to the Constitution they can do this by passing a constitutional amendment, not by using the Supreme Court to try and force the Constitution into saying something that it did not originally intend.
Has time passed the Founders’ handiwork by? Then the people can implement Article V and amend the Constitution. It isn’t easy, but that is no argument against following the law. In contrast, advocates of a “living” Constitution prefer lawmaking by zeitgeist. If it feels good, interpret it, sums up this philosophy. Most non-”originalist” jurisprudential theories offer no standard for anything, let alone for protecting people’s fundamental liberties.
The basic problem is lack of fidelity to the Constitution, not “judicial activism.” The Founders sought to limit the powers of government. To be true to that objective judges have an obligation to act to enforce the Constitution.
If the American people want a national government of unlimited power, they can have one. But to do so they should amend the Constitution. If they don’t want one, it should not be imposed on them by judges acting on personal whim.
The Constitution must mean something to have any effect. We could amend it by sprinkling the phrase “and we really mean it” after the many provisions gutted by aggressively statist judges. Better would be to insist that jurists enforce the document as written.
If constitutional protections are but formless inkblots, then no American is truly safe from his or her government.
