Michael C. Dorf on Who Killed the "Living Constitution"?
This piece is from a few years ago, but it is on point. Unfortunately, I believe Dorf's key point is something of a non sequitor. He writes:
For us living-Constitutionalists, the Constitution's current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.
This conclusion does not necessarily follow. Even if modern Americans' acceptance validates the Constitution as law, that does not mean that their views should play a substantial role in how the courts interpret it. Instead, one might say that if the original meaning of the constitution departs from what modern Americans are willing to accept, they can amend the Constitution or replace it with a new constitution.
Posted at 10:13 AM