The Living, "Common Law" Constitution and How it Grows and Grows

In his book, A Matter of Interpretation, Justice Scalia describes the Living Constitution as:

“[A] body of law that…grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and ‘find’ that changing law….Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.” [at p. 38]

 

In other words, the Supreme Court’s Living Constitution is the common law on steroids—the Barry Bonds’ version of the common law, a common law that trumps the laws of all 50 states and even acts of Congress.

Let's trace the "common law" constitutional right of privacy and see how it ended up constitutionalizing abortion on demand throughout the entire 40 weeks of pregnancy and struck down the laws of all 50 states!