Why I Really Like Elena Kagan Has To Do With Her View Of Constitution As Living Document
I have often posted my disdain for those who think the U.S. Constitution is locked in concrete and not a breathing and living document. Therefore I was very pleased to see Elena Kagan demonstrate so ably why the idea of a living document is the only way to proceed when dealing with matters that come before the Supreme Court.
Ms. Kagan didn’t shy away from declaring that the country’s understanding of the Constitution changes over the years—a notion challenged by constitutional originalists, who argue that judges should adhere as closely as possible to the framers’ original intent.
Ms. Kagan said the framers knew they were crafting a document that had to remain relevant through changing times. She cited such provisions as the Fourth Amendment’s prohibition against “unreasonable” searches, which she suggested was necessarily open to interpretation because unreasonable is an imprecise term.
On that same theme Walter Dellinger, Head of the Office of Legal Counsel in the Clinton administration; partner at O’Melveny & Myers offered this assessment on the matter.
First and foremost, Kagan rejected a crabbed version of originalism, one that is actually contrary to the expectations of the Framers. She noted that sometimes the Constitution contains specific rules (Senators must be 30 years of age) and those rules must be followed. But for other matters, she argued, the framers rejected specificity and adopted general language (searches must not be “unreasonable”) that they knew would require the exercise of judgment by later generations in light of a changing world. Because we have a more expansive view of freedom of expression than the Framers’ generation, she believes that judicial precedent is the surest guide in First Amendment cases. She defended the major civil rights in similar terms. This was a breath of fresh air in constitutional debate.
You once wrote: “To state, as the ‘originalists’ do, that the words of the Constitution do not evolve with time is a seriously flawed idea. To pretend that the living America of ideas and events does not necessitate a Constitution that bends and adapts within the framework of guiding principles is one of the most bizarre and dangerous concepts that has ever been suggested. ”
There is danger in saying that words no longer mean what they once did. The written word should not ‘evolve with time ‘ as you suggest but be understood as to its original meaning and context. What should ‘evolve with time’ are refinements codified as constitutional amendments.
When ‘public purpose ‘ supplants ‘public use’ to permit the State from taking your property and giving it to someone else is one example of evolution that should be rejected without a constitutional amendment. The Fifth Amendment is quite clear that the taking of property for ‘public use’ is permitted. Yet the Supreme Court ruled that public purpose is the same as ‘public use’ and that cities with renewal projects supersede property owner’s rights. This is an abomination.
The Constitution is a living document if it is modified and not if we change the intepretation.
Your love for the “living document” argument is based on the assumption that society will always evolve and change into something better. History is absolutely full of examples which suggest that this is not the case. While I agree that some advances like the civil rights victories or the current struggles for equal rights for homosexuals signal the great potential of a society evolving toward freedom, I worry about what might happen when things move the other direction. What Miss Kagan should understand is that there is a process by which the Constitution can evolve–the amendment process.
I hope that Miss Kagan understands that liberty is best preserved when the power and scope of the federal government are carefully limited. I further hope she understands that justice must view the parties before the bench “blindly” or there can be no justice.