Beginning even with Marbury v. Madison, the case that established the Supreme Court’s authority to declare a law passed by Congress unconstitutional despite the fact that no such authority was granted by the Constitution itself, the process of removing the reality of authority in the United States from what the Constitution actually said had begun.

The Constitution clearly says that the courts are bound to uphold it and all laws enacted under it’s authority, which certainly means that the courts should not uphold laws that contradict the Constitution or are not authorized by it. That doesn’t mean that the courts are the only arbiters of constitutionality, however, nor does it give them any authority to dictate what the laws should be.

My mistake, sorry. I’ve fixed it.

Also, good post by Mr. Mataconis. His discourse and argument are valid and heavy consideration should be given to his points (that is, before completely conceding to mine! All said in jest, of course).

When you look at this question, we have to realize that living does not imply leftist, right winger, or even libertarian. It just means we can read in between the lines. The interpretation is what matters here. For example, the Constitution never says we have a separation of church and state. It says that there will be no official state religion and that we are free to hold our own religious beliefs; but we read between the lines and say (at least in theory) that church and state are separate entities: something that, I believe, promotes liberty. All in all, it’s not the idea of the Constitution being living that expands government power; it’s the interpretation and those who interpret it.

For me the question whether the consitution is or should be viewed as a “living document” is empirically self-evident. For better or worse, it obviously is and will continue to be so until like all living things, it dies.