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Slate's Jurisprudence: A 'Living' U.S. Constitution?


This is DAY TO DAY. I'm Alex Chadwick.

Coming up, the science of matrimony.

First, this: Senate confirmation hearings for President Bush's Supreme Court nominee, Judge John Roberts, begin next week. Along with all the specific questions he'll be asked about his judicial philosophy, one big question will loom over these proceedings. Is the Constitution alive or not? Put it another way: Should it be interpreted exactly as the framers intended, or should it accommodate changes in technology and morality and society in general? Dahlia Lithwick, legal analyst for the online magazine Slate, threw that question out to her readers last week and got hundreds of responses on both sides. She's back with us now.

Dahlia, why this question especially because of these hearings with Judge Roberts?


Well, mostly I think because in preparing for the hearings myself, I was struck by the prevalence in the world of punditry of only one side of this argument--that is to say, I kept reading over and over again, `Roberts needs to be an originalist, he needs to be a strict constructionist, he needs to be one of those guys who reads the Constitution exactly the way the framers wrote it and intended it to be. He can't be one of those, you know, willy-nilly make-stuff-up-as-he-goes-along judges.' And I thought that's interesting; what's the other side of that debate, and more importantly, why aren't we hearing it? There used to be this notion of a living Constitution, of a Constitution that evolved as times and morays and technology changed. And yet, we're not hearing that side of the debate. And so I essentially threw it open initially to readers and said, `What do you think? Is this Constitution in fact really dead? If it's a living Constitution, why don't we hear arguments for that?'

CHADWICK: The living Constitution side is often associated with liberals, so I imagine you heard from many, offering ideas to support the notion that there should be a living Constitution. What did they say?

LITHWICK: They argued, I think, overwhelmingly, one, a sort of normative point, which is the Constitution has to be alive. Look at the text of the Constitution itself. Look at the Ninth Amendment, look at the Eighth Amendment, which says there's a bar on cruel and unusual punishment. If there is a bar on cruel and unusual punishment and no definition of what that is, of course the framers intended for evolving notions of cruel and unusual to be incorporated into the constitutional scrutiny.

CHADWICK: And how about the originalists, the people who argued that--`Stick with this document, it was great 200 years ago; it's still great.' These are conservatives. What did they say in response?

LITHWICK: The most interesting thing I found, the distinction between the two types of letters, is that the folks who are for strict construction or originalism are quite angry. There was a sort of tenor in their voice of real betrayal, a sense that these unconstrained judges are thwarting a popularly elected president, a popularly elected Congress, and that, you know, the sort of arguments about judges who have not been tethered to anything, who sort of make it up as they go along. But I will say that they went a lot farther than that and made really substantive and I think very smart argument about the need to sort of have something fixed, to sort of say, `We can't triangulate off whatever the current fads are or the fads in other countries. We need to really orbit around something that stays the same.' That's the single most important thing in the law, is that it doesn't just shift around on a whim. And that was, I think, the essence of some of their best letters.

CHADWICK: Was there anything particularly insightful or persuasive that altered the way that you think about this question?

LITHWICK: Well, at one level, I think what was most interesting, I thought, was how even the average reader--you know, people who started their e-mails with, `Hey, I'm not a lawyer, but'--had incredibly nuanced and well-crafted arguments for their position. So I think it's a myth to think that Americans aren't deeply involved and concerned about this. But I think more than anything it really helped me understand that the tension here is not just about, quote, unquote, "activist judges," you know, it's not just about the idea that judges are crazy monkeys, as I call them, who are sort of swinging from the constitutional chandelier and making stuff up. I think the tension is very, very much deeper, and it has to do with do we have something that is fixed and certain, immutable that we'll always know we can triangulate back to, or are we just going to sort of bounce along on the currents of fads and, you know, morals that shift and change. And I think in a sense that goes to the deep divide between conservatives with a small C and liberals with a small L. But it helped me really understand that all this concern about activist judges is really a small part of the debate. The real debate is: Is there something hard and fixed at the core here or not? And that I think is the level at which John Roberts should hopefully talk about this next week.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She's a legal analyst for the online magazine Slate, and a regular guest here on DAY TO DAY. You'll find her pieces on the living Constitution debate at Dahlia, thank you again.

LITHWICK: My pleasure, Alex.

CHADWICK: More coming up on DAY TO DAY from NPR News. Transcript provided by NPR, Copyright NPR.

Alex Chadwick
For more than 30 years, Alex Chadwick has been bringing the world to NPR listeners as an NPR News producer, program host and currently senior correspondent. He's reported from every continent except Antarctica.