At Defining Ideas, Richard Epstein: The Constitution's Vanishing Act. From the introduction:
The United States Constitution is at its core a classical liberal document. But over the last hundred years, much of it has turned into a progressive text thanks in large part to Supreme Court justices who interpret it creatively, thereby skirting the laborious amendment process of Article V. Here, I address one major, if underappreciated, cause of the problem—the fine art of making its critical words and letters just disappear through the Court’s imaginative application of its power of judicial review. This constitutional disappearing act does not take sides in the longstanding debate over judicial restraint and activism. In some cases, it unduly expands judicial power; in other cases, it wrongly contracts it. The two best illustrations of how this process works are found in the Eighth Amendment and in Article 1, which sets out the federal government’s taxing power.
And from the conclusion:
These two constitutional vignettes are, in one sense, polar opposites. The current law on cruel and unusual punishments injects the Supreme Court into matters that properly fall beyond its purview, while the taxing power cases remove the judicial oversight needed to prevent government bankruptcy. Both errors stem from the willingness of the justices to drift ever farther from the constitutional text on matters of first principle. Sure, the Constitution raises lots of thorny issues. But those complexities should never let us overlook this simple proposition: Every word of the Constitution must be quoted and analyzed. The Constitution is short and to the point. Making words disappear is the surest way to distort its meaning.
Posted at 6:31 AM