The genius of what the late great Justice Antonin Scalia called textualism or originalism is the humble and sound anthropology – doctrine of human nature – held by our nation’s founders. The precept of checks and balances for the three branches, the intent that the federal government be small and limited, and other aspects of the U.S. Constitution manifest its framers’ adherence to that doctrine.
Technological advances have not changed human nature, and we ourselves are not able to change it; the technology of DNA itself bears this out. Thus it is foolish to regard the constitution as a “living document.” The term itself is an oxymoron. Don’t be bamboozled by newspeak! The U.S. Constitution is a fixed standard of law to which external developments in society such as technological advances must be applied.
For example, consider the fourth amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It is easy and intuitive to recognize that the expression “papers and effects” must now include electronic means of communicating and storing information. That is applying the intentional force of a fixed standard, i.e. a document, to new externals. Those externals have not changed the fact that for human beings, power corrupts and unreasonable searches and seizures will tend to result from that corruption, as surely as small children never need be taught to tell lies.
Moreover, the constitution makes provision for its own amendment. It has been amended, and can be amended again, lawfully. Lawless people who have an arrogant and unsound anthropology conceive of the constitution with a wax nose, presuming that the place of the courts is to twist it to mean whatever they desire.
Like the prophet Habakkuk proclaimed of the Chaldeans of old, “they are terrible and dreadful; their judgment and their dignity proceed from themselves.” (Habakkuk 1:7)