Monday, August 29, 2005

Jack Balkin: Alive and Kicking: Why no one truly believes in a dead Constitution.

But there's a more important problem here: Non-originalist decisions that guarantee race and sex equality, that protect free speech and the rights of criminal defendants, and that give Congress power to protect the environment and secure equal civil rights are not unfortunate errors that we are just stuck with because of "reliance." They are some of our country's proudest achievements. There's something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with. For if decisions like Brown, Loving, Craig v. Boren, and Griswold v. Connecticut are mistakes, we should read them as narrowly as possible and overturn them at the first opportunity. But that's not how Americans regard these decisions. They are evidence of our gradual progress as a nation. They are what make us a country conceived in liberty and dedicated to the proposition that all people are created equal.

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