Kennedy, Liberty, and the Evolving Constitution

Who couldn’t love Carl’s spirited account of Democrats’ always uneasy and sometimes hostile relationship with the actual Constitution? Some Republicans really do love and respect the Constitution more. But I can’t forget that the most egregiously open-ended interpretation of “living constitutionalism” was written by a Republican appointee who’s evolved into being the most consistently libertarian member of the Court. Remember KENNEDY’s words in LAWRENCE v. TEXAS:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Our Framers were intentionally vague on what liberty is. That’s because they knew they were blinded by the limitations of their times (talk about your HISTORICISM). So they knew that later generations would have a “greater” or increasingly more expansive view of what freedom is (talk about your PROGRESSIVISM). Constitutional “principles” are just words or verbal weapons to be “invoke[d]” in our open-ended “search.” And, of course, it’s the Court that tells us what LIBERTY has come to mean for our generation (talk about your JUDICIAL ACTIVISM).

So calling to mind PLANNED PARENTHOOD, the mystery clause which is the key to LAWRENCE and decisions soon to come, and the plurality of Kennedy, O’Connor, and Souter (not to mention Blackmun) remind us that the judicial activism we at FIRST THINGS are most concerned about today didn’t come from Democrats.