He gave a speech recently at a Federalist Society meeting. Here’s an excerpt:
A "Living Constitution" means that laws would change based on the whims of judges, not on anything concrete. When it is applied we get the silliness of graphic pornography being allowed under the principle of Freedom of Speech while people of faith are persecuted under a twisted interpretation of Freedom of Religion while gun ownership is virtually outlawed in some states in spite of a whole Amendment put in to guarantee the right to bear arms. While few see it as an example of injustice, the courts arrogantly ignored the Sixth Amendment when they tried Timothy McVeigh in Indiana rather than Oklahoma. As trivial as that may seem, it still marks an ominous trend of the courts....
A document that "bends" with the culture does little good when that elasticity is completely controlled by judges who live and work in a completely different culture than the people their decision affect. Is the difference between the culture today and a decade ago really more different than the cultural difference between a rich, New England circuit court judge and a poor, Southern blue collar worker? Cultural divides do not just exist along time lines, they exist geographically, economically and sometimes even racially. To rip out the meaning of the Constitution just to accommodate one minor difference in time makes little sense when other, more dramatic differences exist. The question should be: Do these cultural differences really warrant a change in the application of the Constitution? If so, the Founding Fathers allowed for a way to compensate, by allowing the Constitution to be amended. That's the solution, if one is needed.
But the philosophy of a "living document" becomes an open door to a power grab by a despotic oligarchy of judges. And we have seen that happen right before our eyes.
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