In this Wall Street Journal interview, Senator Specter, in explaining that he is going to ask Harriet Miers if she believes in a “living Constitution,” tried to paint Chief Justice Roberts as a proponent of the unprincipled judicial power grab that the “living Constitution” euphemism conceals: “I’m going to say, Chief Justice Roberts agrees that the Constitution is a living thing. Do you agree with that? As values change, the Constitution accommodates to the needs of modern society. I’ll give her a chance to agree with Roberts.” Citing his experience as “an assistant D.A. when the Warren Court revolutionized criminal procedures,” Specter added: “I know what a changing Constitution is. And of course that’s a gigantic thing. Justice Scalia would disagree with the evolving Constitution. Roberts agreed with me.”
Hardly. Roberts did not embrace, but in fact rejected, the “living Constitution.” In response to one question from Specter, Roberts did state, “I agree that the tradition of liberty is a living thing, yes.” That was a skillful way of diverting the inquiry and is a proposition that I would not dispute–precisely because it doesn’t mean anything. Specter later asked Roberts, “Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?” Roberts’s response was a statement of originalist principle, not “living Constitution” gobbledygook:
Well, I think the framers, when they used broad language like liberty, like due process, like unreasonable with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages. As they said in the preamble, it was designed to secure the blessings of liberty for their posterity. They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies — and they intended it to apply, in a particular way, but they intended it to apply — down through the ages.”Roberts further explained in response to a question from Senator Hatch:
[T]he framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law. The people who framed our Constitution were jealous of their freedom and liberty. They would not have sat around and said, Let’s take all the hard issues and give them over to the judges. That would have been the furthest thing from their mind. Now, judges have to decide hard questions when they come up in the context of a particular case. That’s their obligation. But they have to decide those questions according to the rule of law — not their own social preferences, not their policy views, not their personal preferences — according to the rule of law.Let’s hope that someone can set Specter straight on the basics: (1) The actual Constitution gives broad play to the democratic processes and thus enables the people, through their elected representatives, to craft policies that accommodate the needs of modern society. (2) The “living Constitution” empowers five sitting justices to entrench their own policy preferences as “constitutional rights” and thereby impairs the ability of the people today, and of later generations, to craft policies that they believe are better suited to the needs of society.