Biden’s SCOTUS pick will likely view Constitution as an ‘evolving’ and ‘living document’ to be reinterpreted as times change

President Joe Biden has yet to nominate a replacement for outgoing Supreme Court Justice Stephen Breyer, but the president did just deliver a big hint as to the judicial outlook and philosophy his eventual nominee will likely hold.

During a White House event Tuesday, Biden made reference to an always “evolving” U.S. Constitution in relation to adding or limiting certain rights enjoyed by the people with respect to who he would eventually nominate to the high court, The Daily Wire reported.

The belief in an “evolving” or “living” Constitution that can be reinterpreted as society changes over time is a decidedly liberal point of view that differs sharply from the strict originalism, or interpreting the Constitution as the framers originally intended, that is more favored by conservatives.

Biden drops some hints

President Biden held a meeting at the White House Wednesday with the top two members of the Senate Judiciary Committee — Chair Dick Durbin (D-IL) and ranking member Chuck Grassley (R-IA) — to discuss the Senate’s “advice and consent” role in confirming the president’s judicial nominees.

“And, you know, it’s — there’s always a renewed national debate every time we nominate — any President nominates a justice, because the Constitution is always evolving slightly in terms of additional rights or curtailing rights, et cetera,” Biden said. “And it’s always an issue. And there’s several schools of thought in terms of judicial philosophy. And we’ll see.”

But the fact is that I’m looking for someone who I can — this is not a static issue; it flows back and forth. What I’m looking for is a candidate with character; with the qualities of a judge, in terms of being courteous to the folks before them and treating people with respect; as well as a judicial philosophy that is more of one that suggests that there are unenumerated rights in the Constitution, and all the amendments mean something, including the Ninth Amendment.

Competing judicial philosophies

With regard to the “judicial philosophy” that President Biden mentioned, that goes beyond simply liberal or moderate or conservative, though liberals and conservatives do tend to align more with certain philosophies than others.

There is judicial activism, in which judges seek to reshape the laws they rule upon, versus judicial restraint, in which judges stay firmly rooted to laws as written. There is also loose versus strict constructionism, with the former featuring some judges reading laws expansively while the latter involves judges sticking to exactly what was written.

Coming into play for Biden’s eventual nominee are the competing philosophies of a “living document” versus “original intent” with respect to the Constitution, with the first aligning with the belief that the Constitution must grow and adapt to changes while the second seeks to determine what the document’s framers had originally intended when it was first written.

Unenumerated rights not found in the Constitution

Also raising some eyebrows was President Biden’s invocation of the Constitution’s Ninth Amendment, which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The meaning of that amendment has been hotly debated since its inception, with some interpreting it as little more than an additional check on government power over the people while others have used it to dream up and even codify all sorts of “unenumerated rights” that the nation’s founders and framers almost certainly would never have conceived of or codified on their own.

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