Often lost in the debate over the idea of a "living constitution" is the fact that the Constitution provides a mechanism for it to change: the amendment process. Linda Whitlock provides a necessary reminder of this fact in an intelligible column today in The Roanoke Times. In response to a reader who believes the genius of the Constitution "is its elasticity, not its rigidity," Ms. Whitlock correctly responds,
"The genius of the Constitution ... is not its elasticity, but its provision for being amended by the citizens through the legislative process."The reason this fact is so often overlooked is that changing the Constitution through the amendment process is often difficult. As Ms. Whitlock notes,
"Getting the requisite approvals of two-thirds of both houses of Congress and three-fourths of the state legislatures can be a long, arduous and, sometimes, unsuccessful process."But to those seeking to change the law, particularly the left, this process was too arduous and needed to be sidestepped. Enter amendment by judicial decree. For this to work, those seeking to change the law need a sympathetic court.
"The courts have risen to the occasion. The temptation not only to interpret laws but also, through the avenue of the elastic Constitution, to make them has been too enticing to resist. The courts now treat the Constitution as though it can be stretched to encompass whatever justices think it should."
During the campaign Obama said that he wanted judges "who are sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless," which of course means judges willing to stretch the Constitution in order to meet their idea of what it should be.