To: Mr. Whist who wrote (74939 ) 11/15/2000 12:28:19 AM From: Neocon Respond to A document neither lives nor breaths. It "evolves" in only two ways: the application of the text to novel situations by well- formed analogy, and actual amendment. That is because the judge is not a legislator, and cannot usurp that role, but is enjoined to apply law, common or statutory, according to prudent rules of textual analysis and application. The best defense I have ever read of the liberal framework of constitutional jurisprudence was by Ronald Dworkin, in essays published in The New York Review of Books. He adduced the argument that one generalizes principles from the text for application, and that since everyone has to do it, to some extent, in dealing with novelties, one cannot draw a clear line to prevent liberal interpretation. The problem is that if one draws out the "penumbras and emanations" to the point of platitude, they become nonsensical. For example, it is clear that privacy is a value held dear in the Constitution: people may not be subject to search and seizure without "due process". However, the very invocation of due process belies that attempt to use the right of privacy as a trump card, since anyone may be subject to search upon valid warrant from a magistrate. Thus, only by attention to the way a principle or value is qualified in the text, or the application of common sense in the invocation of the principle or value, can generalization be valid, and this, once again, favors the more conservative view of interpretation. How would you like it if some fascist court had an evolving interpretation of treason, and decided that all of those who declared they would not acknowledge the duly elected president of the United States to be "their president" should be subject to execution? Well, it is just such loony extensions of the Constitution that have made abortion a widespread practice..........
