"The Court and Constitutional Interpretation"

The Supreme Court website (h/t Volokh Conspiracy) has this tidbit:

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

Living Constitution, huh? The term can be used in various ways, including a fairly vanilla one where the First Amendment can apply to the Internet. Still, the term clearly has a certain implication and the use of quotes only encourages you to think of them as compared to a passing reference without quotes. Later we read:

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."

Again, you can interpret that innocently, so to speak, but this originalist reading of the words (I like how quoting Marshall is supposed to be revisionist) seems fair. The quote has a Kennedyesque flavor. The "future elaboration" would arise from basic principles, not the specific understandings of a past age. To quote a key Kennedy expression of the idea:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

This is timely since someone accessed a past discussion on this blog of what might be called liberal originalism (with links to Jack Balkin's promotion of the idea) which can be found here. The page's summary is strange all the same, since it again is something that some of the justices are likely to be uncomfortable with given its implications. I would even note that the "complex role" does not only derive from judicial review -- the courts would have such a role even if it did not have such a power or one much more restrained. Also, "individual rights"? Again, Kennedyesque, since unlike others, he would consider that to include federalism.

The overall effect of the discussion is appreciated though and it underlines that even if a Kennedy as the swing justice is pretty conservative, things are not totally bad. This page should be quoted by the appropriate parties -- it has potential.