I believe it was Time Magazine (or was it Newsweek) that featured an article intended to patronize the Tea Party movement. Aside from spending most of the article attacking conservative personalities (later making specious points about conservative positions), the article featured pictures of people in tri-cornered hats with looks on their faces that conveyed the quasi-religious fanaticism with which such unevolved throwbacks supposedly regard the Constitution.
For me, this was not without a certain irony, because the conservative position seems to be to regard the Constitution as a legally binding contract, the words of which have particular meanings that don't change with the times.
I will introduce here an analogy that is not intended to exalt liberalism nor to trivialize Christianity, but to highlight an aspect of the modern controversies over the Constitution.
For most of Christianity, the Gospel accounts and the apostolic letters constitute(!) an exposition of a revelation that is related to, and yet transcends, the covenant of God with Abraham, Isaac and Israel/Jacob that is central to Judaism. The theology is nuanced, nontrivial, and sometimes controversial, but aims generally at balancing the meanings of Luke 22:20, Matt 5:17-18, and Matt 22:40. People inside and outside of Christianity have been troubled with resolving perceived conflicts (e.g. Canaanite genocides) between the Old Convenant with Abraham and the New Covenant mediated by Jesus of Nazareth. The traditional understanding is that the Abrahamic Covenant and its legalistic unfolding in the laws of Moses (the Torah) were a sort of stepping stone to lead to a foretold outpouring of Spirit in which the laws of God would be read from its inscription in hearts rather than tablets or scrolls , in which the spirit of the law would transcend the letter of the law.
For a people largely steeped in the tradition, particularly with the Protestant penchant of challenging doctrine, it was perhaps inevitable that a similar quasi-religious understanding would be applied to the covenant between the People of the States and the federal authority over the States that was constituted(!) by this covenant. For Progressives like Woodrow Wilson, FDR, and Teddy Roosevelt, the letter of the law was too restrictive on their authority and the Amendment Process too tedious to implement the "spirit" of the will of the people (as they understood that will).
In a loose sense the Pauline understanding of the New Testament that came to dominate Christian theology was "heterodox" and "progressive" in relation to the factions that sought to understand the Gospel in a way that continued to exalt the Torah. These Judaizing factions (according to Paul of Tarsus) were, by contrast, more "orthodox" (more compatible with the mainstream Pharisaism of the time) and more "conservative" (less threatening to longstanding tradition).
There is a kind of reinterpretive hermeneutics that is used to reconcile new revelations and spiritual paradigms with the traditions from which they arise (e.g. Sufism, Shin Buddhism, Zen Buddhism, Advaita Vedanta, Baha'iism, etc.). Rather, a misapplication of revelatory exposition seems to underlie Progressivism, treating the Constitution as a spiritual text in need of adaptation to changing times. Evolving meanings have been the staple of religious evolution; why not apply it to the political beliefs underlying the Declaration and the Constitution? Only this reinterpretation will be based on Science. Our new Darwinian sense of enlightenment teaches us that organisms must adapt or go extinct, so the Constitution must adapt. We will interpret laws (and eventually the Constitution) in a way that makes sense scientifically. This is Woodrow Wilson's Scientism-turned-Progressivism. The text of the Framers must come to mean something it emphatically did not mean to them, and yet have a meaning that can be indirectly attributed and thus carry the weight of their authority.
In a certain sense, religious documents are treated as "living documents." As revelatory documents they are thought to require some sort of intuition or inspiration or epiphany to make sense of scriptures and sutras. And religious understandings can be said to evolve as teachers, prophets, and reformers shine new light on their canon of writings. The Torah as understood in 300 B.C was different from the understanding of 1000 B.C. The understanding was different in 200 A.D., even only considering Judaism, let alone the understandings by the various Christian sects. It is often considered in religious scripture that there is an inspiration in the writing that is larger than whatever the writer might have had in mind or the original audience might have had in mind.
The Living Constitution idea would make more sense if the Greek god Prometheus had inspired the Founders to write the Constitution and had intended that, after the Industrial Revolution, the technological hubris that would inspire logical positivism would also make us ambitious enough to see Prometheus's wishes hidden as the "spirit" of the Constitution, His divine wish for us to evolve into Homo scientificus with a scientific government.
|Kagan joins the Court with her empathic qualifications.|
FDR's repackaging of Wilson's reconstruction of our politico-philosophical foundations seems presented in covenantal language. The New Deal is a new covenant to transcend and ultimately replace an old deal. FDR's Second Bill of Rights is a new testament to be concatenated to an old testament (the first Bill of Rights) to form an amended canon. The Progressive canon. Federal case law that expands on (in Talmudic proportions), reinterprets, and reconstructs the Constitution beyond (and against) what the People of 1776 believed they were covenanting, is part of the Progressive canon as well.
I believe that the views of the Constitution and its judicial expositions embraced by the Left (explicitly or implicitly) are religious in nature, informed by an overarching worldview and an accompanying value system that would not only be alien to the Framers of the Constitution but entirely antithetical to their understandings of both the intent of the document and the role of religion in society. In this progressive-shaped pop culture, shying away from the religious fanaticism of the Left can be described as conservative. To me it just seems sensible.