I don't follow your argument.
The words of the Constitution don't change. The interpretations do.
You seem to agree that the language of the Constitution should be interpreted in terms of contemporary values, so that what the words "cruel and unusual punishment" include should change over time.
By the same token, though, that means, I believe, agreeing that, for example, the words "equal protection" should also change over time. In 1787, few if any would have argued that "equal protection" should mean that women should have the same right to own and control property that men had. That has now changed, and it is clear that under today's interpretation of the Constitution, women have the same property rights that men have.
I don't think it needs
extra flexibility added to it that is not in the document itself.
The problem is that few if any Supreme Court jurists say that they are adding flexibility that is not in the document; they will say they are just finding the flexibility that is in there that is responsive to societal changes.
That said, I personally agree that the court has gone too far in many cases. Whatever one things of abortion, Roe v. Wade is a very badly reasoned decision.
My problem is that once you accept the concept of flexibility, you open a door, and it is very difficult to present any reasoned argument for how far the door should open and how far is too far. We can have feelings about it, but we can't come up with a reasoned, principled argument. |
