Changing times and the “Living Constitution”

Changing technology presents a recurring problem for lawmakers. Laws are enacted with a background understanding of the facts. When those facts change, the effect of the old legal rules can change along with them. A law created for one world may have a very different impact when applied to the facts of a different era. As a result, changing technology and social practice often trigger a need for legal adaptation. Maintaining the function of old rules can require changing those rules to adapt to the new environment.

This paragraph opens an essay in the Harvard Law Review by Constitutional scholar and Fourth Amendment expert Orin Kerr.  Professor Kerr’s essay calls for the U.S. Supreme Court to overturn its previous ruling back in 1973 which stands for the current state of the law on police searches incident to an arrest.  That ruling held that the Fourth Amendment always permits a “full” search of a person and property on his person at the time of arrest. The question currently being debated in the Federal courts is whether the police may search the content of a suspect’s cell phone when he or she is arrested, relying on the “incident to arrest” exception to the requirement to obtain a search warrant before conducting a search.

Professor Kerr says the Supreme Court should change it previous ruling on the Fourth Amendment by adopting a special rule for cell phones, stated this way: Such a device should be searched pursuant to the search‐incident‐to arrest exception only when “it is reasonable to believe evidence relevant to the crime of arrest might be found” in the device.

I think Kerr is on to something here, and that he is right.  The Supreme Court should revise its earlier ruling. But there is something here that is even more interesting to me than the current law on warrantless searches incident to arrest.

I agree whole heartedly with Kerr’s opening paragraph quoted at the beginning of this post.  I agree that, “A law created for one world may have a very different impact when applied to the facts of a different era.” If we agree with that statement, does that mean we must agree with the “Living Constitution” school of thought so popular with liberal Constitutional law professors? [I have no idea what Professor Kerr’s views are on this].

No, for this reason.  Kerr’s statement of changes in facts and technology calling for a change in the law does not support the claims for a “Living Constitution.”  The Constitution does not need to changed to accommodate a change in previous opinions of the Supreme Court when those decisions were reasonable interpretations of how the unchanging principles embodied in the Constitution are to be applied to current facts and circumstances.  But if the principle upon which a decision is based cannot be found in the Constitution, or if the decision can only be supported by ignoring a principle that is clearly stated in the Constitution, then a Living Constitution that grows and changes according to the the personal whims of judges is required for their decisions to be sustained.

A case like Roe v. Wade is the consummate example of a “Living Constitution” being needed to justify it.  The Constitution itself is silent on either abortion or a right of privacy.  These concepts had to read into the Constitution by an activist judge and that sort of judicial fiat needs a Living Constitution to justify it.  Otherwise, those who wanted abortion to be a Constitutional issue would have had to resort to the intolerable labor of convincing their fellow citizens of the merit of their idea and then go through the process of getting a Constitutional amendment approved by 2/3 of Congress and ratified by 3/4 of the states.

A Living Constitution is how you can ignore the legitimate amendment process and get the Constitution to say what you want it to say and ignore what it actually says, or doesn’t say.

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