I enjoyed today's discussion about laws that "evolve" as common usage of language changes.
Let's see how this might work.
Suppose in 2011 a constitutional amendment is ratified providing that "the right of gay marriage will not be abridged." The original understanding of this amendment in 2011 is that it protects the right of same-sex couples to marry.
But now suppose 40 or 50 years pass and the common usage of the word "gay" has changed. In other words, common usage of the word gay in 2061 is that the word means happy or carefree, not same-sex sexual orientation.
Does this mean that same-sex marriage is no longer protected by the constitution, because the meaning of the word "gay" has "evolved?"
Can persons lose constitutional rights, not because the constitution is amended to repeal those rights, but because the common usage of language contained in the constitution changes over time?
Suppose common attitudes about same-sex marriage become less accepting over time. Should the Court decide that, since the right to gay marriage has "become obsolete in the evolved society," the express constitutional right should no longer be recognized?
Or should the right to "gay marriage" be interpreted, in accordance with its original understanding at the time of ratification (i.e. as of 2011), to protect the right of same-sex marriage?
Please feel free to write comments on this post, because I would really like to see your thoughts.
