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Presidential Issues: Judiciary


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Precisely why should the Constitution not be a ‘living and breathing’ document?

February 16, 2016

By Benjamin Zycher

I stayed up way past my bedtime Saturday to watch the Republican debate in South Carolina. With the sad passing of Justice Antonin Scalia, the early part of the debate centered on the candidates’ views of the proper role of the judiciary and their respective preferences in terms of the characteristics that they would emphasize in the Supreme Court nominees they might consider if elected president.

The answers ranged from trivial, robotic, and uninformed (Trump, unsurprisingly) to insightful (Marco Rubio), the latter making it clear that he would insist on nominees who, like Scalia, do not view the Constitution as a “living, breathing document.”

But why not, precisely?  Voters unused to thinking about this are going to ask: Why should the Constitution not be interpreted in light of modern needs and problems and conditions? Rubio’s answer is not self-explanatory, and should be rephrased as follows. The basic purpose of the Constitution is the protection of political minorities from the whims and passions of the political majority of the moment. That is the central meaning of the separation of powers, federalism, federal powers limited to those enumerated, the Bill of Rights generally, and the 9th and 10th amendments in particular.

Read the full article at the American Enterprise Institute: Precisely why should the Constitution not be a ‘living and breathing’ document?

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