Dahlia Lithwick wrote a series of pieces at Slate
this week on the concept of a "living constitution" -- the conceptual alter ego of the philosophy of judicial review known as "originalism" or "strict construction" (although those two things are not necessarily the same thing). Lithwick's first piece
wondered if the idea of a living constitution was dead, and invited readers to weigh in. Her second piece
synthesized reader arguments defending a living constitution, and the third piece
highlighted the arguments of defenders of originalism.
To me, one very simple argument in favor of a living consitution open to interpretations that acknowledge and exploit the march of history and progress is found in the the plain language of the Fifth Amendment, specifically the military exception contained in the first clause:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.
Madison and his fellow framers did not foresee the invention of flight, and hence the creation of an air force, so naturally the Fifth Amendment doesn't mention one. Unless I'm missing something, an orthodox originalist reading would say that the military exception to the right to a grand jury presentment therefore applies to the Army, Navy, and Marines, but not to the Air Force. Are there any constitutional originalists out there who would agree that the military exception to the first part of the Fifth Amendment does not apply to the Air Force?