Bill Clinton has written an op-ed in The Washington Post throwing his support behind the overturning of the Defense of Marriage Act — a bill he signed into law 17 years ago. His timing is clearly political, given the fact that the Supreme Court will hear arguments for overturning DOMA on March 27. While the justices should not be influenced by his opinions, his actions carry symbolic weight that the Supreme Court justices cannot help but to notice. After all, if the very President who signed the bill into law no longer supports it, that speaks volumes.
I find it interesting that he justifies his signing of the law in 1996 on the grounds that “it was a very different time” then, but also claims that the law is “incompatible with our Constitution.” Has the Constitution changed? No. So how could a law be constitutional 17 years ago but unconstitutional today? It’s because Clinton subscribes to the “living document” view of the Constitution in which the meaning of the Constitution changes with the culture, though the words remain the same. I think this philosophy of Constitutional interpretation is flawed. The Constitution means what its drafters intended it to mean, and what its signers and ratifiers understood it to mean. The meaning of a document does not change over time. If the Constitution can mean whatever we want it to mean, and if the Constitution can be interpreted in light of cultural changes, then the Constitution cannot protect any of us because it doesn’t mean anything in particular. It is just silly putty in the hands of the judiciary.