I’ll be on Bill Bennett’s national radio show “Morning in America” bright and early tomorrow, 6:20 a.m. Eastern time, to discuss today’s oral arguments in the Prop 8 case, Hollingsworth v. Perry.
I’m reading the transcript now, and one of the most interesting moments is when Ted Olson, representing the plaintiffs (now respondents) seeking to overturn Prop 8, turned smartly down the blind alley of the living Constitution. Justice Scalia was pressing him to state exactly when it became unconstitutional to say that marriage is not an institution that includes same-sex couples (p. 39, my bracketed interpolations):
JUSTICE SCALIA: Was it always unconstitutional?
MR. OLSON: It was [un]constitutional when we–as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that[,] that–
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then . . . ?
Exactly. When the Constitution’s text remains the same but its meaning changes, do we even have a Constitution? Or do we simply have government by judiciary, making false claims in the name of the Constitution?