|The author of the Undead Constitution, Zombie James Madison.|
Marco Rubio: .... I think one of the biggest things the next President is going to do is appoint justices to the Supreme Court -- justices who understand that the Constitution is a living and breathing document. It is a document of limitation and it’s supposed to be interpreted and applied based on its original intent. And there is no way that you can read that Constitution and deduce from it that there is constitutional right to an abortion, or a constitutional right to marry someone of the same sex. And what you have is a Supreme Court that wanted to reach a certain policy outcome and so creatively manipulated the Constitution to discover a right that for over two centuries, some of the most brilliant minds and legal history didn’t find. (h/t Tengrain)I assume in that last clause you're talking about Bush v. Gore and George W.'s right to prevent the Florida vote from being counted because that might violate his equal protection under the law? None of the most brilliant minds and legal history caught that one, for sure.
But the big thing is you really need to get your constitutional clichés straight. That "living breathing Constitution" line is mine, not yours, referring to the law that evolves in time, in which it's OK to use the Commerce Clause to force businesses serving interstate travelers (trains, hotels) to not discriminate against black people, even though James Madison and John Jay never thought of it. Or women may have a right to a "pre-quickening" abortion even though it's not in the Constitution (it was legal everywhere in the Republic under common law until New York made it a misdemeanor in 1829).
Your "document of limitation" Constitution with no rights other than the ones Chief Justice Marshall imagined is the dead one with its face frozen in a permanent rictus. Or as Justice Scalia said of the living constitution theory,
"you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism; it is a legal document. It says something and doesn't say other things."Or you could pretend to believe that's a valid view, but you'd still be an idiot.