Legal Commentary

The Vitality Of Our Constitution

By Big Tent Democrat

The Supreme Court released its final decisions this morning. Among the most anticipated was McDonald v. Chicago (PDF), where the question presented was whether the Second Amendment applies to the States, via the incorporation doctrine. Justice Stevens' dissent includes a passage on the Constitution and the role of the Supreme Court that I believe will be remembered:

[T]he liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a“dynamic concept.” Stevens, The Bill of Rights: A Centuryof Progress, 59 U. Chi. L. Rev. 13, 38 (1972). Its dynamism provides a central means through which the Framers enabled the Constitution to “endure for ages to come,” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819), a central example of how they “wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live,” Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694(1976). “The task of giving concrete meaning to the term‘liberty,’” I have elsewhere explained at some length, “was a part of the work assigned to future generations.” Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev.277, 291 (1986).21 The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.

(Emphasis supplied.) Speaking for me only.

Full post as published by TalkLeft on June 28, 2010 (boomark / email).