by Steve Sanders, who teaches and writes about constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law, Bloomington.
*This post is part of ACSblog’s 2015 Constitution Day Symposium.
Advocates for civil rights and civil liberties often look to our Constitution in their quest for legal and social change. But the processes of legal and social change also shape the contours, sometimes the very meaning, of constitutional guarantees. Last summer in Obergefell v. Hodges, the Supreme Court applied the Fourteenth Amendment to transform the nationwide legal status of same-sex marriage. But it is important to appreciate how same-sex marriage had already changed the Constitution.
On matters of individual liberty and equality, the Constitution is not a catalog of enumerated, narrow, and static rights, though most legal conservatives insist that we treat it that way. Rather, it provides a set of bedrock values, values whose meanings grow and adapt alongside the growth of knowledge and human understanding.
As Chief Justice John Marshall wrote in McCulloch v. Maryland, a constitution is “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” Justice William Brennan, one of the greatest champions of a progressive Constitution, observed, “Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure.”
And as Justice Anthony Kennedy wrote in a decision invalidating laws that criminalized same-sex sex acts, “Had those who drew and ratified the [Constitution] known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight…. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
In that 2003 decision, Lawrence v. Texas, the Court considered the last half-century of legal and social change, both in the United States and in other democracies, and found an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”