Just So

Though not particularly known as a legal commentator- or, at least, as a specialist in that area- Jonah Goldberg has a piece up on consitutional law and the contradictions shown by some living consitutionalists during the NSA wiretaps controversy. Goldberg attacks the ACLU, among other groups, for construing the Consitution with great flexibility in so many areas but advocating a rigid view of presidential war powers. I think his reasoning is somewhat inelegant, and perhaps incorrect, in places, but his conclusion is nicely stated:

Long before the concept of a living Constitution was hatched, the authors of the original version — as well as the courts interpreting it — understood that the executive branch has the authority and flexibility to conduct foreign policy and wage war. Terrorists may be criminals, but they aren’t merely criminals. They’re waging war against us and doing so in ways never imagined by the founders. They don’t want territory or treaties, and they don’t use armies and cannons. They want to make our own technology and freedoms into weapons they can use against us.

And so here is the real absurdity of the “living Constitution” school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, complete intellectual rigor mortis has set in.