Constitution Evolution

That the judicial understanding of the Constitution evolves is not really in question.  The courts are constantly facing situations not contemplated by the Framers (or the Amenders) and have to figure out, one way or another, how our founding document applies to "modern times." The Constitution mentions the army and the navy but what power does Congress have over an air force?  The Constitution mentions copyrights but how should the law (which isn't mandatory) apply to digital information?  The Bill Of Rights guarantees freedom of speech but how does it handle words sent to everyone's home via electronic wavelengths?

No one seems to be arguing that every time something novel occurs, you have to amend the Constitution or Congress has to leave the issue alone.  But what seems to bother people most is when the courts deal with evolving morality in their decisions.  Many laws refer to moral issues and utilize standards that deal with what a reasonable person might expect or believe.  To properly interpret the Constitution, do we have to accept the morality and beliefs of the people who wrote it as a fixed feature, or accept that their abstract words can change meaning over time? (Note either way we've got to read people's minds.) The danger of the former interpretation is it may end up in results that are too strict and brittle (and even going against the intentions of the original lawmakers) while the latter could open up a free-for-all where anyone can get anything they want out of the document

Yesterday's Supreme Court debate over same-sex marriage--in an appeal of the overturning of California's Prop 8--brought these issues to the fore. (By the way, I've been predicting the Court will punt, and that's where the smart money is right now, but you never know.) The argument itself showed how when the times change, the stance of the parties change. Here's attorney Charles Cooper for the "traditional" position:

MR. COOPER: The accepted truth that — that the New York high court observed is one that is changing and changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples.  The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States. And it does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.

Not so long ago, the idea of gay marriage would have seemed absurd, not worthy to even consider as a Constitutional issue.  Now the best the defenders of the traditional marriage can say is please let the public decide this tricky question on their own--though it would, in fact, be decided by the Constitution if our side can't come up with a rational argument.

A bit later:

MR. COOPER: We — we are saying the interest in marriage and the — and the State 's interest and society's interest in what we have framed as responsible pro -­ procreation is — is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.

Once again, we see how evolving standards affect legal understanding.  Just a few decades ago society's interest in (exclusive) heterosexual marriage would have seemed so obvious no one would have to defend it, but today, Mr. Cooper has to huff and puff to demonstrate what society once assumed.

A lot of pundits--especially conservatives--have been quoting this exchange with attorney Theodore Olson.

JUSTICE SCALIA: We don't prescribe law for the future. We — we decide what the law is. I'm curious, when -­when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? Sometimes — some time after Baker, where we said it didn't even raise a substantial Federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It's an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question.
(Laughter.)
[....]
JUSTICE SCALIA: I'm talking about your argument. You say it is now unconstitutional.
MR. OLSON: Yes.
JUSTICE SCALIA: Was it always unconstitutional?
MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There's no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then -­
MR. OLSON: Because the case that's before you -­
JUSTICE SCALIA: — if you can't give me a date when the Constitution changes?

Defenders of traditional marriage seem to think this is game, set and match for Scalia.  To them, Olson is admitting the Constitution means whatever we feel like it means, based on which way the wind is blowing.

But is this belief, even when expressed in such a blatant and extreme manner, obviously wrong?  Justice Scalia believes that laws mean what the lawmakers meant them to mean (whatever that is) when they passed them.

So how then does Scalia answer Olson's challenge?  He says that interracial marriage (or racial segregation in school or both) became illegal when the Fourteenth Amendment passed.  But how does that help us?  It still took decades for the result he supports to be achieved.  Is Scalia saying, like Dorothy's ruby slippers, the courts had the power to allow interracial marriage all along, it just took a century for them to realize it?  Doesn't it seem more likely that due to changing political and moral beliefs, laws against interracial marriage--at one time acceptable to the majority--became considered so wrong that a century later the Supreme Court finally declared an amendment passed in the 1860s now makes all such laws unconstitutional?

I'm writing this sentence because I don't want to end on a rhetorical question which some may not find rhetorical.