A New Brand of Umpire

In a compelling new piece at Slate, Doug Kendall of the Constitutional Accountability Center and Jim Ryan of the University of Virginia argue that when Elena Kagan faces the Senate Judiciary Committee she shouldn’t ignore or reject strict Constitutionalism—she should wrest its definition back from the Right wing:

…Kagan should take the opportunity provided by this week-long constitutional seminar to chronicle the arc of our constitutional progress and make it clear that she will faithfully adhere to the whole Constitution, including the amendments passed over the last 220 years. The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since. This view is absurd and should be forcefully rejected by Kagan. Perhaps she could follow Chief Justice Robert's umpire analogy, in which he famously likened judges to umpires calling balls and strikes. No one would claim that modern umpires have the power to enforce the "original" rules of baseball, even if those rules have been changed. The same is true of justices enforcing the Constitution.

As Rand Paul and the RNC have recently learned the hard way, most Americans accept that our Constitution, like our society, has changed over the past 200 years. Kendall and Ryan are right that progressives shouldn’t downplay the written document—they should brandish it.
 

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