Living constitution

Dahlia Lithwick in Slate on the forgotten living constitution as everyone tries to get inside long-dead heads. Here's a snippet:

In a very thoughtful essay published last week in the American Prospect, Adele M. Stan argues, "Liberals have done virtually nothing to explain the Constitution to regular people in terms they understand." Before you call those sentiments classist or elitist, ask yourself when you last read a compelling defense of the "living Constitution" in your daily newspaper. And I don't mean a defense against the "activist judiciary" charge -- these are not the same things. All too often these two criticisms are conflated, but it's certainly possible to imagine a "living Constitution" as interpreted by hands-off, minimalist judges.

She calls for a better defense of "living" constitutionalism to counter all the originalist noise out there.

How about starting with this passage by John Dewey from 1927's The Public and Its Problems:

Emotional habituations and intellectual habitudes on the part of the mass of men create the conditions of which the exploiters of sentiment and opinion only take advantage. Men have got used to an experimental method in physical and technical matters. They are still afraid of it in human concerns. The fear is the more efficacious because like all deep-lying fears it is covered up and disguised by all kinds of rationalizations. One of its commonest forms is a truly religious idealization of, and reverence for, established institutions; for example in our own politics, the Constitution, the Supreme Court, private property, free contract and so on. The words "sacred" and "sanctity" come readily to our lips when such things come under discussion. They testify to the religious aureole which protects the institutions....
There is social pathology which works powerfully against effective inquiry into social institutions and conditions. It manifests itself in a thousand ways; in querulousness, in impotent drifting, in uneasy snatching at distractions, in idealization of the long established, in a facile optimism assumed as a cloak, in riotous glorification of things "as they are," in intimidation of all dissenters -- ways which depress and dissipate thought all the more effectually because they operate with subtle and unconscious pervasiveness.