Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of limited government and individual rights is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.”We can aspire to those things, but when it comes to the law, what are the legal definitions of those ideals?
The Living Constitution’s partisans’ high priest was the late Warren Court era Supreme Court Justice William J. Brennan, Jr. According to him, in a 1985 speech, the Constitution “embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure.” (My emphasis.)
Brennan was saying that: the Constitution, rather than delegating specific powers to the federal government (Articles I, II and III), respecting state sovereignty (Tenth Amendment), and recognizing the existence of enumerated (Amendments I-VIII) and unenumerated (Amendment IX) rights, instead embodies amorphous “aspirations.” Whose aspirations, Brennan did not inform us.
But Brennan did tell us what those aspirations are: “social justice, brotherhood, and human dignity.”
Therein lies the problem. The law, which admittedly, has its gray areas, must depend upon the definitions of words and Justices must struggle mightily with the definitions. To this day, I don't think anyone can give me a clear, commonly understood, objectively sound definition of any of Brennan's aspirations.
That is the danger of Obama admiring a man like Brennan. While Brennan may have provided a conscience for the Court, we need judges to make tough decsions and those decisions need to be based on law as it is written, not as we aspire the law and society to be.