Tuesday, September 13, 2005

Joe Biden: "Our great civic Bible"

Joe Biden, in his opening statement of the Roberts hearings, made the case for a living Constitution:
At every step, we've had to struggle against those who saw the Constitution as frozen in time. But time and again, we have overcome, and the Constitution has remained relevant and dynamic thanks to a proper interpretation of the ennobling phrases purposefully placed in our great "civic Bible."
He directly challenged the original intent school of Constitutional jurisprudence:
Once again, our journey of progress is under attack from the Right.
There are judges, scholars, and opinion leaders -- good and honorable people -- who believe the Constitution provides no protection against government intrusions into our highly personal decisions -- decisions about birth, marriage, family, death, and religion. There are those who would slash the power of our national government, fragmenting it among the states. Incredibly, some have even argued that the Constitution eliminates the federal government's ability to respond to disasters like Katrina.
In my view, the proponents of original intent are perpetuating a kind of legal fundamentalism that claims to be the "old time religion," forgetting that we can never relive or recreate the past. Just as religious fundamentalism is based on nostalgia for the past rather than an actual reliving of the past, those who proclaim allegiance to the original intent of the framers express a political nostalgia for a time to which we cannot return.
Biden continued with his view of our evolving Constitution:
Our constitutional journey did not stop with women barred from being lawyers, with 10-year-olds working in coal mines, or with black kids forced into different schools than white kids just because the Constitution nowhere mentions "sex discrimination," "child labor," or "segregated education."
Our constitutional journey did not stop then, and it must not stop now. For we will be faced with equally consequential decisions in the 21st Century: can microscopic tags be implanted in a person's body to track his every movement; can patents be issued for the creation of human life; can brain scans be used to determine whether a person is inclined toward criminal or violent behavior?
Judge, I need to know whether you will be a Justice who believes that the constitutional journey must continue to speak to these consequential decisions -- or that we've gone far enough in protecting against government intrusion into the most personal decisions we make.
Biden put the burden on Roberts to make the case that he can be a Chief Justice for the 21st Century, not the 19th Century:
Judge, if I looked only at what you've said and written in the past, I'd feel compelled to vote NO. You dismissed the Constitution's protection of privacy as a "so-called right," you derided agencies like the Securities and Exchange Commission that combat corporate misconduct as "constitutional anomalies," and you dismissed "gender discrimination" as merely a, and I quote, "perceived problem."
Dana Garrett has posted the entire text of Biden's statement over at Delaware Watch. It's worth a read in its entirety.

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