During oral arguments on Tuesday, March 26th, concerning the right of homosexuals to marry as they see fit, Justice (if that word is appropriate for) Antonin Scalia asked attorney Ted Olson, who was arguing in favor of that right, "When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the 14th Amendment was adopted?"
Olson answered with a sequence of questions of his own: "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"
The two sparred back and forth. Olson concluded: "There's no specific date in time. This is an evolutionary cycle."
Of course, that answer -- essentially the "living constitution" theory of interpreting the Constitution -- couldn't possibly have gone over very well with Scalia, who has always (and passionately) rejected it.
Olson's answer was evasive. A good answer was available to him, but he unfortunately failed to use it.
This answer would have been along these lines:
"Your assumption seems to be that the Constitution starts with the presumption that rights do not exist unless they are stated in the Constitution.
But that's a false presumption about our Constitution. This nation's Constitution starts instead with the presumption that nothing is prohibited unless laws that adhere to our Constitution prohibit it.
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