“Judge Gorsuch has also stated that he believes judges should look to the original public meaning of the Constitution when they decide what a provision of the Constitution means. This is personal, but I find this originalist judicial philosophy to be really troubling. In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would would not only ignore the intent of the Framers, that the Constitution would be a framework on which to build, but it severely limits the genius of what our Constitution upholds.” Feinstein added.
Judge Scalia, whose seat Gorsuch has been appointed to fill, famously described it this way: "The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."
Feinstein, as do all Marxist/Progressives (Democrats) and those who advocate for a Marxist totalitarian state, claims that the founders intended that the constitution be interrupted in any way current society and the courts wanted. This is absolutely incorrect. The founders were “rule of law” adherents. A primary requirement for “rule of law,” besides having the law applied equally to all regardless of an individual’s economic, political, or societal position, is that the law be written and available to all.
The written part is critical because it requires the law be applied in a way understood by both those who would accuse and those who are accused. This why the concept of a “living document” is desired by the left, it allows a written law to be changed without going through the designated process. We saw that very concept of a living document practiced by Putin in Russia recently, when he arrested his primary antagonist for leading protests after Putin interpreted the law to allow the arrest. We see the concept of a living document practiced in the United States today when district courts, appellate courts, and the Supreme Court issue an opinion (remember the constitution does not allow the courts to make law, only to issue opinions) that is beyond the scope of the United States Constitution or a law duly passed by the Legislative Branch and signed into law by the Executive Branch.
The concept of a “living document” is the same as arbitrary rule, where a law can be read to mean whatever the government wants it to mean at any given time. Arbitrary rule is essential for a dictator of a totalitarian state. In the case of the Marxist/Progressives, the Dictatorship of the Proletariat can only function if the Constitution is considered to be and applied as if it were a living document.
Rule of law, or the application of the Constitution as Judge Scalia and Judge Gorsuch advocate, is essential to a free society like our founders intended. Apparently, Feinstein is not aware that it was the intent of our founders that the United States remain free for their lifetime as well as for future generations of Americans.
The founders understood that times would change and at some point, the document they had written might have to be changed or altered. Because of this the founders established a way to amend the Constitution.
Article. V of the United States Constitution
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article*; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
It was never the intent of the founders to allow the courts or the executive to make law. It was never the intent of the founders to allow any changes to the Constitution to be made without following the amendment process. It was the intent of the founders that the United States adhere to “rule of law.” It was the intent of the founders that the United States remain a free nation.
Those who desire a “living document” are in fact saying they want arbitrary law. Those who desire a “living document” are in fact saying they want the United States to become a totalitarian state, which is always the result of arbitrary law.