As Democrats and Republicans tussle over replacing Antonin Scalia, we should consider the thoughts of a current Justice on the Constitution.

In 2014, while expounding on the Magna Carta, the Associate Justice of the Supreme Court, Anthony Kennedy, said the Constitution is flawed.

“The Constitution of the United States is a flawed document,” Kennedy said. He explained the document’s “thinly veiled languagebasically reaffirmed the legality of slavery.”

Kennedy said the founding document of the republic allowed slavery to exist at least until 1808. He failed to mention, however, that the Constitution and the Articles of Confederation, adopted in 1781, say nothing specifically about slavery. Both left the question of slavery along with other powers up to the states.

Kennedy is a proponent of the theory that the Constitution is a “living” document, that is to say future generations would be able to modify its key provisions.

Kennedy said the “framers were wise enough to know that they could not foresee the injustices, so they used general language,” in other words, those words could be distorted or reinterpreted by future generations.

His remark is based on the thoughts of former Supreme Court Justice William Brennan who hailed the Constitution’s “majestic generalities” and said the founders made the language intentionally vague in order to allow future generations to cut and paste the document.

Kennedy used the Second Amendment as an example. The amendment ratified along with the rest of the Bill of Rights in 1791 guarantees the right to possess firearms in unmistakable and general language, but according to Kennedy modern exigencies have called this right into question.

As an example he cited the 1896 ruling in Plessy vs. Ferguson which upheld segregation in public transportation as “separate but equal.” This was overturned in the Brown vs. Board of Education decision in 1954. Thus, he argued, over time constitutional understanding changes.

It is true Kennedy stood with Antonin Scalia, John G. Roberts Jr., Clarence Thomas and Samuel A. Alito Jr. to defend the Second Amendment and strike down the District of Columbia’s ban on handgun possession in 2008, but his belief the Constitution is not a literal document and can be changed is troublesome.

Now that Scalia is dead we can expect Obama to nominate another proponent of the living document concept based on vicarious societal values such as the “right” to an abortion, the “right” of gay marriage, the “right” of illegal immigrants to immigrate and assume the benefits of citizens, and a number of other “rights” not mentioned in the original Constitution, specifically the assumed right of the state to confiscate wealth and property and redistribute it to preferred classes, often depicted as victims.


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