Evolution or Creation?

Some commentators reject an originalist theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation."

Is this a theory of evolution or a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that constitutional provisions "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

Rumpole and the "Evolving" Constitution

As a follow up to the post about the "Evolving Constitution" as, in reality, a theory of intelligent design (i.e., the Constitution "evolves" only in the sense that new species of Constitutional rights are actually created by judicial decree--"let there be a right to abortion" sayeth the Court), consider a wonderful passage from John Mortimer's Rumpole of the Bailey. In a short story entitled "Rumpole and the Old, Old Story," notice Rumpole's response when Soapy Sam Ballard, Rumpole's "head of chambers," proposes to ban smoking in chambers. Rumpole, who chain smokes small cigars or cheroots, replies that it is illegal to ban smoking under British constitutional law and Magna Carta. Ballard asks Rumpole: "Could you just remind me which clause in Magna Carta deals with smoking?" To which Rumpole answers: "'No freeman shall be taken or imprisoned, or destrained on or exiled or denied the comfort of the occasional cheroot...unless by the lawful judgment of his peers.'" John Mortimer, The Second Rumpole Omnibus, at 491. Later on, Rumpole adds that smoking is also protected under the European Convention on Human Rights, and when asked by Ballard for the exact provision, Rumpole replies: "'No citizen shall be persecuted on the grounds of race, creed or colour or because he lights up occasionally." Id. at 510

Query--as you read Supreme Court decisions interpreting the US Constitution, do you get the impression that the Court is acting a little bit like Horace Rumpole?