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Living Constitutionalism at the Supreme Court
Mike Rappaport

Eugene Volokh points out that the Supreme Court's web site refers to the Court as engaging in Living Constitutionalism:

This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

While this is unfortunately descriptive of what the Court has been doing, in the main, since at least the New Deal, it seems odd that it is on the Supreme Court's web site.  Living Constitutionalism signifies a controversial approach to constitutional interpretation.  

One would expect that Justice Scalia and Thomas, at least, would disapprove of this description of what the Court is supposed to be doing.    

Reading the rest of the entry on the Web Site, it is filled with lots of conventional wisdom which this originalist disagrees with.  First, there is the claim that "the Court's power of judicial review was not confirmed until 1803" in Marbury.  While I suppose technically true, it too much suggests to my mind that the power was not in the original Constitution -- a view congenial to Living Constitutionalism -- but which more recent scholarship claims to be mistaken.

I would also take exception to the final paragraph of the entry, which states:

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying. Both are in my view mistaken.

However far originalism has moved, we still have very far to go.  Fixing this website -- and not just the explicit words of "living constitution" -- would be a step in the right direction.

It will be interesting to see whether this is changed and if so, how long it will take.