From an address by Assistant Attorney General William Bradford Reynolds on May 23 at Vanderbilt University:
The 14th Amendment does offer support for Justice Marshall's claim that the Constitution is "a living document," but only in the sense that the Constitution itself provides a mechanism -- namely, the amendment process -- to reflect changing social realities. Indeed, this orderly process for constitutional "evolution" is a part of the original Constitution's genius, for it provides a mechanism to correct flaws while safeguarding the essential integrity of our constitutional structure. But the existence of this mechanism -- coupled with the system of checks and balances among the three branches of the federal government and the strong endorsement of federalism principles embodied in the 10th Amendment -- makes it abundantly clear that the Framers gave no license to judges (members of the branch regarded, to borrow from Alexander Hamilton, as the "least dangerous" of the three) to construe constitutional provisions as they see fit.
There is good reason for this confluence of restraints on judicial activism. The Constitution is not a mass of fungible, abstract principles whose meaning varies with time; rather, it comprises a broad societal consensus on certain fundamental, absolute principles necessary for the protection of individual liberty.. . . Accordingly, the Constitution was structured so as to require that any change reflect the broadest expression of societal consensus. . . .
Judges are not free to disengage from our constitutional moorings in furtherance of their own social agendas; they are not free to determine that the constitutional principles themselves are unwise or obsolete.