Living Constitutionalism is the practice of interpreting the constitution based upon its meaning in modern society, its tenets being fluid, and it being meant to evolve over time. This view of interpreting the constitution was coined by Justice William J. Brennan, and this practice seems less than true to the document itself. If we look at Article 1: Section 1 of the U.S. constitution it’s clearly stated that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Take specific note of the word “herein”. The clause creates the notion that all powers (without exception or addition) granted to congress are listed within the document itself. Implying its parameters as the only ones by which they can exercise power.
To go forward in exercising judicial review in court you must acknowledge such. Brennan runs into a problem here. His constitutional interpretation operates under the assumption of preserving human dignity as it pertains to [what it means] in our time
. The thought of this operates under a premise of the progressive fallacy. The idea that moving forward automatically means you are going to a better place.
We cannot say for certain that the framers did or did not have a better sense of human dignity than Brennan does currently. To assume him or any future Supreme Court Justice does is quite the arrogant proclamation on such a widely varying social concept. Brennan is seemingly excusing their point of view and supplementing it with his own in order to advance his own agenda. This judicial activism allows the court to operate freely and make rulings that seemingly violate the constitutional supremacy outlined in Article 1: Section 1.
Brennan seems to forget that interpreting the constitution as the framers did does not leave the document unmalleable to time, as the constitution has granted the legislature the ability to amend the constitution given they are successful in meeting the parameters for amendment as outlined in Article 5 of the U.S. Constitution. By asserting he has a duty as a justice on the Supreme Court to uphold human dignity in a modern context (with no regard of the law’s constitutional and historical context), he may actually be violating his judicial authority and undermining Congress’s constitutionally granted power as well as state powers given by Article 1 Section 1 and Amendment 10.
The duty of the court after Justice Marshall began the tradition of judicial review in Marbury vs. Madison is to interpret laws made by Congress as constitutional or unconstitutional. Not to stop Congress from permitting actions you disagree with based upon Brennan’s or anyone else’s progressive view of human dignity which may or may not be beneficial to the society at large.