Living Constitution in War & Peace
Tonight while I was watching Jack Bauer save the world yet again on '24' (one of those confusing shows that condones torture on the one hand while portraying the classic left-wing stereotype of a black female character supporting the cause of "freedom" while the older white male character opposes her on the other hand) I had something of an epiphany. A common refrain amongst supporters of the idea of a "living Consitution" (i.e., a Constitution that automatically adapts to reflect the changing times) is that an activist judiciary is necessary to oversee that adaptation since the document as drawn up in the 18th century is no longer applicable in the 21st century and must be modified accordingly. Case in point, the argument that the right to bear arms should be struck from the Constitution since your ancient black-powder muzzleloader has nothing in common with your modern AK74. Tonght's episode of '24' adopted a relatively new take on that argument, the idea that the Constitution should be adapted to reflect the changing times, or, as one character put it, to reflect the fact that "George Washington and the Founders fought redcoats marching in step; we are fighting underground terrorists with nukes." (It should be noted that the most recent proponent of this view in the show is Powers Boothe, better known as the infamous Cy Tolliver from HBO's 'Deadwood' - now tell me that isn't subliminal messaging right there; they might as well have used Ian McShane). This argument is most frequently heard coming from GW and his followers.
I had a difficult time distinguishing the two opinions from one another. After all, it is the American Left that strongly supports judicial activism on the basis of a "living" Constitution but screams bloody murder whenever anyone says that the Consitution must be taken in the context of today's terrorist activities. Meanwhile, the American Right screams bloody murder about judicial activism, insisting on a "strict" Constitution, but then insists that it must be "living" whenever terrorism and national security enter the picture. And so I pose the question to the community - how is it possible to reconcile these two positions, so diametrically opposed to one another and yet so similar at the same time? I do not ask this to make a point, since I believe that both sides have erred, but rather to get an answer. Obviously my American brethren are more likely to have an opinion on this, but I do open it to the community as a whole.
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