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Rejecting the idea of a “living Constitution” simply means that a Justice will respect the authority allotted to the legislative and executive branches (and the state governments) by the actual language of the Constitution and will not create new “rights” out of thin air. A Supreme Court Justice should fairly and impartially interpret the Constitution in light of the original meaning of its language, not seek to advance a social agenda by legislating from the bench.
One inaccurate critique of Chief Justice Roberts and Justice Alito during their confirmation hearings was that they would not respect the authority of Congress (it is unfortunate, but not surprising, that Senators would argue for the most expansive view possible of their own authority). However, a pair of cases shows that Chief Justice Roberts and Justice Alito impartially considered Acts of Congress on a case-by-case basis in light of the constitutional provisions at issue.
In Gonzales v. Carhart, 127 S. Ct. 1610 (2007), Chief Justice Roberts and Justice Alito joined the majority opinion which upheld the federal Partial Birth Abortion Ban Act. The Court concluded that “[i]t was reasonable for Congress to think that partial-birth abortion . . . undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.'” Id. at 1635. The Court noted that its previous cases had “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Id. at 1636.
It is interesting that Barry mentioned the Court’s role in protecting the right of individuals “to speak out on vital issues,” as Chief Justice Roberts authored the plurality opinion in FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), which struck down a ban on grassroots issue advertisements near upcoming elections. Chief Justice Roberts, joined by Justice Alito, explained that, in drawing the line between political campaign speech and issue education, “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Id. at 2659. He added that, “[w]here the First Amendment is implicated, the tie goes to the speaker, not the censor.” Id. at 2669.
An Obama-Biden “living Constitution” judicial nominee would likely give Congress more leeway to ban religious and political speech–at the heart of the First Amendment’s protection–than to limit, in any way, abortion on demand.