Ruth Bader Ginsburg is rightfully lionized for blazing the path through which constitutional law came to embrace women’s equality. She is among an elite group of lawyers, Thurgood Marshall among them, who have played an outsized role in facilitating the evolution of constitutional law.
It might seem anathema to refer to the constitution as evolving. You probably have heard originalist arguments that judges are bound to interpret the Constitution’s provisions according to the meaning of the provisions at the time they were adopted. That was the core philosophy of the late Justice Antonin Scalia, who famously said that “the only good Constitution is a dead Constitution,” and is similarly espoused by his former clerk and now Supreme Court nominee, Amy Coney Barrett, who said in her acceptance speech that Justice Scalia’s “judicial philosophy is mine, too.”
Yet the primary reason our dusty old Constitution has survived for over two-hundred years