Lawrence M. Friedman examines how people approve of an evolving Constitution mainly when it evolves in the direction they want it to go. Everybody knows the Supreme Court is powerful and important, but why should it be? The nine justices on the Court are not elected to their positions, are not accountable to the public, and can keep on serving and making decisions long after the president who appointed them has retired. What explains the role of the Court in our society, and what justifies its power? Two new books address these questions, but in different ways. The first, David Strauss' The Living Constitution, is a succinct attack on "originalism." This is the idea (or ideology) that the duty of judges, in a constitutional case, is to try to ferret out what the Constitution meant to the people who drafted it, at the time that they drafted it, and absolutely nothing more. You can make a theoretical case for originalism, but you cannot make a practical case. For one thing, it is not so easy to divine what the Constitution meant when it was written. For another, a true originalist (if there are any) would have to dump overboard almost all of modern constitutional law, including Brown v. Board of Education, all of the decisions on sex discrimination, all the decisions about the right to privacy, and just about everything else in the canon. There is no way to deduce most of the modern rulings on human rights or the powers of Congress or the states from the words of the text as it was understood in the late 18th century (or as the 14th Amendment was understood in the 1860s). KEEP READING. . .
