My essay on the Constitution, judicial activism and the “living document” trope is here at The American Spectator. Here’s one passage:

This brings us to the central irony. The very people most inclined to gush about our “living Constitution” treat it like a Mr. Potato Head:

Ooh, states rights. Let’s pop that off and replace it with a metastasizing Commerce Clause. Oh, and look here in my pocket. A constitutional right to redefine the age-old institution of marriage. Oh and let’s tack this one on, too — a constitutional right to kill a half born baby and throw whatever’s left in the garbage. If anyone complains, we’ll call it “the constitutional right to privacy.”

It’s time to pause and take the living-document metaphor seriously. Living things have an internal logic, have functional constraints. They aren’t endlessly malleable. You can’t replace grandpa’s liver with a second heart just because you think livers are passé — unless you intend to kill grandpa.

  • Ken

    Without attempting to defend abortion, I must ask: Mr. Witt, do you deny the existence of pre-existing unenumerated natural rights (we can leave aside the question of whether privacy is one of those, though in the interest of full disclosure I believe there is a natural right to privacy)? If so, how do you explain the Ninth Amendment?