"Fidelity to the Constitution is paramount, but…"


The Wall Street Journal reports that the search to replace retiring Supreme Court Justice David Souter is in high gear:

President Barack Obama began interviewing potential Supreme Court candidates Tuesday, while a senior White House official defended the president's stated preference for a nominee who will give the powerless "a fair shake."

White House adviser David Axelrod said the U.S. Constitution, like any document of its vintage, must be subject to interpretation in a modern context.

"Fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn't possibly have anticipated all the questions that would be asked in the 21st century," Mr. Axelrod said.

Liberal activists are no doubt heartened by Axelrod's vision of a Constitution that can twist and stretch to answer "the questions that would be asked in the 21st century." But I don't see how that's any different from what the Bush administration tried to get away with when it came to terrorism policy. Didn't we hear repeatedly over the past seven years that America faced an unprecedented "21st century" threat? That the Constitution isn't "a suicide pact?" Well, if habeas corpus and the Fourth Amendment deserve to be treated as something more than quaint historical oddities, then property rights and economic liberty deserve the same respect. That's the problem with the selective living constitutionalism practiced by the left and by the right. Neither side takes the whole document seriously.