Now we know why Anthony Kennedy is the swing vote in all those 5-4 cases:
Supreme Court Justice Anthony Kennedy wasn’t out to make news when he addressed the annual conference of the Ninth U.S. Circuit Court of Appeals and devoted most of his 50-minute speech to the Magna Carta, which turns 800 years old in 2015. But Kennedy did let on that he doesn’t belong to the school of Constitution-worshipers who base their legal doctrines on what they glean to be the original, literal meaning of every word and phrase in the nation’s founding document.
“The Constitution of the United States is a flawed document,” Kennedy said at Thursday’s windup conference session in Monterey.
[. . .]
At the same time, he said, the drafters of the Constitution had the insight to declare principles, like due process of law, that could be interpreted anew by future generations — a sacrilege to literalists like Justice Antonin Scalia, who contends the court is strictly bound by what he deems to be the original intent and meaning of the document.
So if it seems that Kennedy is right in the middle instead of being firmly in one camp or the other, it's because he is. When he gets to one of those sticking points where the document's flaws are evident but the principle is general enough to be "interpreted anew," he does . . . what, exactly? Wings it based on his current mood or the ambient sense of justice prevailing in the world that he can fathom more about than the founders' intent?
I'm not one of those purists who thinks everything hinges on what the original intent was. A lot of things should go into the mix in trying to arrive at a coherent decision, including original intent, the plain meaning of the words, prevailing practices and past court decisions. But if you have to lean one way or the other, it has to be in the "timeless princile" direction rather than the "living document"one. Yes, things change, and the way society deals with them has to evolve, but that's what the law is for, not the Constitution. You don't mess with the foundation without risking the whole thing falling down around you.
The Constitution may be flawed, but it's still one of the greatest documents in the history of the world. I'll take it flaws and all over the prospect of trying to live without it.