Should a person fail to persuade the legislature, or should he feel that a legislative victory would be insufficient because of its potential for future reversal, he may seek to run the more difficult gauntlet of amending the Constitution to embody the view that he espouses. Success in amending the Constitution would, of course, preclude succeeding transient majorities in the legislature from tampering with the principle formerly added to the Constitution.
I know of no other method compatible with political theory basic to democratic society by which one’s own conscientious belief may be translated into positive law and thereby obtain the only general moral imprimatur permissible in a pluralistic, democratic society. It is always time consuming, frequently difficult, and not infrequently impossible to run successfully the legislative gauntlet and have enacted some facet of one’s own deeply felt value judgments. It is even more difficult for either a single individual or indeed for a large group of individuals to succeed in having such a value judgment embodied in the Constitution. All of these burdens and difficulties are entirely consistent with the notion of a democratic society. It should not be easy for any one individual or group of individuals to impose by law their value judgments upon fellow citizens who may disagree with those judgments. Indeed, it should not be easier just because the individual in question is a judge. We all have a propensity to want to do it, but there are very good reasons for making it difficult to do.
The great English political philosopher John Stuart Mill observed:
The disposition of mankind, whether as rulers or as fellowcitizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feeling incident to human nature, that it is hardly ever kept under restraint by anything but want of power. . . .
The brief writer’s version of the living Constitution, in the last analysis, is a formula for an end run around popular government. To the extent that it makes possible an individual’s persuading one or more appointed federal judges to impose on other individuals a rule of conduct that the popularly elected branches of government would not have enacted and the voters have not and would not have embodied in the Constitution, the brief writer’s version of the living Constitution is genuinely corrosive of the fundamental values of our democratic society.
Read the whole thing: "The Notion of a Living Constitution" , William Rehnquist, Harvard Journal of Law and Public Policy, Vol. 29, No. 2