Let's consider a lame joke that Colbert told last night, making fun of Judge #Kavanaugh's first name. The highlighted line seems like a throwaway, but it's important because it relies on a popular but false assumption about the "living Constitution." 1/ 
Colbert bases his joke on the belief that b/c Kavanaugh's an originalist, he's likely to take rights away. An accompanying presumption is that the living Constitution approach, which interprets Const according to modern standards, only grants more rights. But that's false. 2/
As my father put it, "the proponents of the living Constitution indulge the optimistic assumption that whatever changes are made in original meaning will always be in the direction of according greater individual freedom[.]" But those changes can also take away freedoms. /3
The most obvious example, of course, is the Second Amendment. But my father used to cite the lesser known case of Maryland v. Craig, about a law permitting alleged child sex abuse victims to provide their testimony over closed circuit TV rather than in the courtroom. 4/
The Court ruled that this law did not violate the 6A's guarantee that "the accused shall enjoy the right . . . to be confronted with the witnesses against him." The majority referred in part to the "widespread belief in such a public policy's importance." My father disagreed. 5/
In his dissent (joined by...are you sitting down?...Brennan, Marshall, and Stevens) wrote: "Because the text of the Sixth Amendment is clear, and because the Constitution is meant to protect against, rather than conform to, current 'widespread belief,' I respectfully dissent." 6/
He later described the case this way: "our 1990 decision eliminated a right that used to exist," showing that the living Constitution "can take away old rights as well as create new ones"--depending on what justices think best represent the day's standards of decency. 7/
So while Colbert and his audience--and many opponents of Kavanaugh's confirmation--like to pretend that originalism is out to take away rights, they're ignoring what their preferred approach can do. FIN (followed by a note)
Endnote: The majority in Maryland v Craig wasn't the Court's liberal wing. O'Connor wrote the majority opinion, and she was joined by Rehnquist, Kennedy, and White (as well as Blackmun). None of them were originalists.
