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Kagan and "Evolving Standards"

Curt Levey of the Committee for Justice has a worthwhile reminder from this afternoon's give-and-take with Solicitor General Kagan:

Kagan says she agrees that evolving traditions are one of the factors courts can look to in interpreting the Constitution. Sen. Cornyn responds that it's the job of the democratically elected legislature, not the courts, to move the law in accordance with the traditions and values of the people it represents. Instead, as Justice Scalia remarked in his Romer v. Evans (1996) dissent, it's the evolving "views and values of the lawyer class from which the Court's Members are drawn" that the Court tends to enforce. Those who prefer the living Constitution approach to the law do so precisely because more democratic methods of moving the law - legislation and constitutional amendments - do not allow the intellectual elite to impose its values on average Americans.
Amen to that.

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