Living Constitution

Jack M. Balkin wrote in Slate We are all living constitutionalists now. But only some of us are willing to admit it. The notion of a Constitution that evolves in response to changing conditions didn't start with the Warren Court of the 1960s; it began at the founding itself.

Absolutely. They created the mechanism for change. It is in Article V, and it has been used 27 times, including one change that reversed another change

The framers expected that their language, not their intentions, would control future generations. They created, in John Marshall's words, a "constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs".... The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it.

They just dont believe in unelected judges making changes that should be made by the Legislature.

Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation.

Stuart Buck blogged Balkin says that under the "living Constitution," you start the "the meanings the words had when they were first enacted," and then apply "those words to today's circumstances." How far does this get the proponents of the "living Constitution"? A constitutional provision authorizing Congress to "coin" money can easily be read to allow paper money; a provision authorizing Congress to raise an army can be extended to the Air Force; a provision protecting against unreasonable "searches" can be extended to electronic means of searching that weren't in existence even 10 years ago. But this doesn't even remotely justify, say, Griswold, which Balkin praises elsewhere in the essay.... By the reasoning in Griswold, an activist conservative might construe the "zones of privacy" in the Constitution as a reason to strike down: 1) all laws regulating home businesses; 2) the IRS (which demands an intrusive amount of information on people's private lives); 3) all laws regulating what sorts of guns people can own in private; etc.

Orin Kerr blogged Jack Balkin tries to make the case in a provocative essay over at Slate. I think the essay is less an argument for a living Constitution than an argument against originalism, but it's an interesting read either way.