Of course it changes

What's your favorite amendment to the U.S. Constitution?\nGun enthusiasts might pick the Second, but I imagine most people would pick the First, which protects freedoms of speech, religion, press, petition and assembly. Not a bad choice.\nBut the overlooked Ninth Amendment is my favorite. It reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In simpler terms, it means that just because we're listing rights on this piece of paper doesn't mean that many others don't exist. While it's impractical to write all of them, you still have them. \nI love this amendment because it shows the Constitution is a living, breathing document.\nThe debate about whether the Constitution is a changing document is an important question to consider because Chief Justice William Rehnquist's death Saturday leaves the second vacancy on the Supreme Court for President Bush to fill. Meanwhile, John Roberts awaits his confirmation to replace former Justice Sandra Day O'Connor. The senators who question him, as well as the public in general, will be watching closely. And they should, since justices are very influential and enjoy life terms on the bench.\nStrict constructionists who reject the mutability of the Constitution lament justices who "legislate from the bench." Bush identified the refusal to legislate as a primary criterion to earn his nomination. Conservatives are right to claim it is the job of justices to interpret the law, not to make it. \nHowever, the Ninth Amendment offers no answer to the query, "What are these other rights the Constitution protects?" Even the most passionate strict constructionists cannot deny that the Constitution includes rights not listed. It is the job of justices to interpret this intentionally loose amendment. Justices, like all people, are products of the times. As society changes, so will the rights enshrined with the Ninth Amendment.\nIn the 2003 decision Lawrence v. Texas, the Supreme Court ruled that state sodomy laws designed to ban gay sex were unconstitutional. When the Founding Fathers ratified the Ninth Amendment, they probably didn't have anal sex in mind. Then again, they also counted each slave as three-fifths of a person. The justices decided 6-3 that we as a nation understand the law of the land to allow two consenting adults to engage in whatever sexual practices they wish in the privacy of their home. \nThe Constitution would likely not have been construed to allow this two centuries ago. But society has changed, and so has the understanding of our freedoms.\nWhile the future of Rehnquist's vacancy remains to be seen, the Senate will probably confirm John Roberts with a large majority. I don't doubt he agrees with Bush that he should not legislate from the bench. It is indeed the job of justices to interpret the law, not to invent it. Yet there is no contradiction in believing this while accepting the living nature of the Constitution. The changing concept of freedom and liberty means that both the understanding of the Ninth Amendment and the Constitution in general are subject to change. Rehnquist thought otherwise, but I hope Roberts agrees.