I have stated on this blog that the Supreme Court was the most important domestic issue facing the nation during the 2008 election. Far more important than the economy was the long-term impact of the nominees for the high court. We had to make sure, I wrote, that we had a president who could make the correct call.
One of the reasons I felt that way was summed up in a few sentences in October 2008.
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. Those who promote such ideas are the American equivalent of the Taliban, who use the Koran in highly misguided ways. Pragmatic and logical voters understand that past decisions made by the courts, public needs and expectations, along with the larger values that were implied in the Constitution, are needed to be used by judges when making rulings.
As we know all too well there are some who sit on the bench who think that ruling from a ‘strict constructionist’ viewpoint is the proper way to view matter pending before the Supreme Court. That thinking is about to get a healthy dose of further examination real soon.
Supreme Court Justice Stephen Breyer has a new book coming out this week, called “Making Democracy Work, A Judge’s View.”
As NPR reporter Nina Totenberg writes (click through to hear Totenberg’s interview with Breyer), Breyer has sparred for years with Scalia through a host of mediums, namely legal opinions and in public debate. But now Breyer has upped the ante a bit, moving his “argument to the printed pages of a book written for popular consumption.”
Breyer’s targets, writes Totenberg, “is largely the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789.”
“People think . . . the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer,” Breyer told Totenberg. “I don’t think any of those things are true.”
In support of his argument that the founders did want a “living Constitution,” he points to the countless Supreme Court cases that debate open matters like the 14th Amendment, First Amendment and Eighth Amendment’s ban on “cruel and unusual punishment.”
“Flogging as a punishment might have been fine in the 18th century. That doesn’t mean that it would be OK, and not cruel and unusual, today,” he says.
CAFFEINATED POLITICS 
Very well said sir.