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Rehnquist’s Criticism of the Notion of a “Living Constitution”

In "The Notion of a Living Constitution", Rehnquist criticizes the idea of a “vague” Constitution allowing judges to keep it responsive to changing social conditions, even if he agrees that provisions of the Constitution (like “equal protection”) are general enough to cover problems unforeseen by the Constitution framers.
According to him, any legitimate application of general constitutional provisions to modern problems must be “tied to the language of the Constitution” (differently from the “plain words” of the textualists), otherwise “nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so”.
He presents the cases Dred Scott v. Sandford (1857) and Lochner v. New York (1905), but in fact his examples don’t work since they are not cases in which the Court fails to connect its answers to a provision of the constitutional text. This is why, talking about the “brief writer” (the “Living-Constitution Liberal” presented above, supporter of the idea of the living Constitution), he shifts from the plain of the actual language of the Constitution to the intentions of the framers: in this sense, his test regards the fidelity of the Court to framers’ intent.

The “new problems”, those of modern life, would be matters left open to political choice (by the Congress), not constrained by constitutional principle, thus not in the hands of the courts. In this way, Rehnquist criticizes a Constitution able to go beyond the conceptions of the Civil War era: in his vision, the extension of the definition of “person” to more subjects than in XIX century (e.g. to homosexuals or unborn persons) should not be accepted, impeding the application of the constitutional provisions to subjects that, during the time, have been recognized as “persons”.

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