Mayor Bloomberg, in response to the Boston Marathon bombings, has said: “but we live in a complex word where you’re going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change.”
Bloomberg here suffers from the same affliction that so often infects the liberal view of the Constitution – namely that it is a “living” document that should be interpreted in line with society’s “needs.” (This argument is almost always used to bolster the prevailing socially liberal dogma, and is rarely proffered when the liberal viewpoint would likely be defeated.) It is an arrogant perspective that inherently presumes that the person rendering the decision is capable of both interpreting society’s stance on an issue and, more importantly, is capable of saying what society’s stance should be. Constitutional interpretation, however, should be just the opposite. The Constitution is a dead document, meant to protect against the changing times in society. It is a bulwark of principles that should be an immutable framework. While society may (and should) change its laws to reflect the will of the people, its bedrock principles should not be subject to changing circumstances, and they most definitely should not be reinterpreted to arrive at a politically desired result. The hallmark of great Constitutional analysis should be the arrival at a result which is divorced from politics or personal preferences.
If Bloomberg (and others) think the Constitution is wrong on an issue, they are provided with a method of fixing it – an amendment. However, passing an amendment is hard. It really does require that society, by and large, agrees on a position. Therefore, people like Bloomberg find it so much easier to just circumvent and undermine the Constitution by advocating for and nominating judges that will “change their interpretation” to reflect their wishes. It is an act of intellectual laziness and cowardness. The prime reason why advocates like Bloomberg don’t go for an amendment is, quite simply, because they don’t have the votes, because society doesn’t agree with them and their failure to secure an amendment reveal that their claim to speak for society is false.