POSTED RESPONSE TO A COLUMN BY CLIVE CROOK IN THE FINANCIAL TIMES
"With time, society changes, and the gap between justices who believe in fidelity to the original document and those who believe in a “living constitution”–equally defensible positions, regardless of one’s politics–gets wider."
That is absolutely true, with the exception that "fidelity to the original" can be called an equally defensible position.
Not in rational terms. It cannot be.
The Judge Bork view of things is exactly comparable to the Fundamentalist Christians who believe the earth and all it contains was created at one stroke about 6000 years ago.
The world now changes rapidly, and the rate of change only grows more rapid with changing technology. All forms and practices of government must change in response, not necessarily promptly but regularly.
Also, the simple fact is that the American Constitution was a document of compromise, and some of the compromises were with forces we now find utterly unacceptable, as for example, with the very real political power of slaveholders.
Even further still, the Constitution has many flaws. The Fathers were not all-seeing and, indeed, were downright wrong in some important matters. Some of the things they thought they were doing ended up with the opposite effect to what they intended.
Perhaps the greatest single example of that was the division of war-making authorities, the President as Commander-in-Chief and only the Congress as able to declare war.
Of course, in the modern era, none of America's many wars are declared, so Congress's power is vestigial.
And when the Founders made the President Commander-in Chief, Americans largely believed in no standing armies, so his power was only potential for a situation Congress first decided military response as appropriate.
But today, his power is immense and dangerous because of America's Frankenstein military. He is Commander-in-Chief of a thing greater than all the world's armies combined.
In a very real sense, this immense contemporary power violates the fundamental ideas of the Founders because the President's office was deliberately designed to be weak, which indeed it still is in domestic affairs.
But the Bork view very much fits the military-industrial complex America has become. Empires and militarism are quite comfortable with sticking with ways which facilitated their rise.
The great irony is that the sentimental sense of America which is so often cited by Bork-types in fact no longer exists, and, to a considerable extent, never did.
America is barely a democracy at home and literally behaves the part of a tyranny abroad often.