The Corner


Since yesterday’s column (and last night’s panel) I’ve had 8 gazillion people (I’m exaggerating slightly) tell me that if the Constitution wasn’t a living, breathing document then women would still be second class citizens and blacks would still be living in segregation. There are four responses to this. First: Are you high? Second: Um, women got the vote through a constitutional amendment, last time I checked. And blacks were supposed to get equality under the 14th and 15th amendments. In other words much of the “progress” (and progress-without-quotation marks) we’ve seen regarding the Constitution came through adding new text to the dead Constitution rather than adding new meaning to the existing text. That is a huge difference. This leads to point three: A “dead” constitution doesn’t mean justices can’t change their minds or fix incorrect readings held over from the past. “Judicial activism” to restore the true intent of the Constitution is not the same thing as considering the Constitution to be a “living” text. And four: what the hell do you think laws are for? Readers who say that without the “living constitution” we wouldn’t have the Miranda rule and the like, might be right to a certain extent. But we might very well have a Miranda law. We pass all sorts of laws in this country without the benefit of the Court’s approval, why these people think we wouldn’t pass such “essential” laws if the Court went back to doing its job is beyond me.

Jonah Goldberg, a senior editor of National Review and the author of Suicide of the West, holds the Asness Chair in Applied Liberty at the American Enterprise Institute.

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