“Let me explain the division among Conservative legal thinkers.  Some Conservative legal thinkers, thinkers like Justice Scalia, Justice Thomas think that the Constitution means what it originally meant.  That means that we should understand the document by going into a kind of time machine and capturing the public understanding of the public that ratified the document a century, or more than a century ago.  So that is a very distinctive approach would involve quite radical changes in our existing Constitutional understandings, and Justice Thomas is entirely clear on that.  He’s voted to overrule the Supreme Court’s own precedents over twenty times.  On the other hand there are other Conservatives who are not in favor of going in the time machine, but who are skeptical of Liberal judicial activism in a way that would involve narrow, cautious, literally conservative rulings.  So Chief Justice Rehnquist was often a different – very different kind of Conservative from Justice Scalia, Justice Thomas, though he voted with them.  Justice O’Connor was strikingly different than Justice – was is – strikingly different from Justice Thomas and Justice Scalia in the sense that Justice O’Connor likes stability and she doesn’t – she likes nudges, she doesn’t like earthquakes.  And when Justice Scalia and Justice Thomas asked for large scale movements in the law, especially when they asked for attacks on what the democratic branches did in the interest of recovering the original understanding; Justice O’Connor was not with them.  So this is a big split between literal Conservatives and those who believe that the Constitution’s best interpretation is very dramatically different from what we now have.”

Notice that he doesn’t refer to Conservative Constitutional scholars as scholars.  Conservative are merely “thinkers” in his mind (such as it is).

He is clearly espousing his idea that the Constitution should be reinterpreted to mean what Judges, and specifically liberal Judges want it to mean.  That we shouldn’t go back (we can do this just fine without a time machine, moron.  Historical documents exist) to the original understanding of the Constitution.   The Constitution was a contract between the States and their peoples that existed when it was ratified.  All States that have followed signed on to this existing contract.  It isn’t living and breathing any more than your mortgage agreement or employment contracts, Sunstein.
This “living and breathing” interpretation is pure idiocy for a number of reasons.

I already stated that the Constitution amounted to a contract between the States.  This contract was an agreement concerning limitations on the Federal government, and to some extent relations between the individual States.  You don’t change contracts without renegotiating the terms.  That is the purpose of the amendment process.  Doing so without limitations leads to either anarchy or totalitarian rule by the party in power.

Allowing a small group of unelected persons to “interpret” the Constitution to find rights not included, to find ANY Federal authority not spelled out, and to change laws at a whim is very bad business and not intended by the ratifiers.  What will you do Mr. Sunstein, when these interpretations don’t go your way?  What happens if Conservatives are in power for many years and appoint their own life long partisans?  Will your tune change then?  The Constitution must be looked at in it’s most literal form to prevent abuses by any side.  Conveniently for Conservatives, most believe in the original view.  Maybe that is why we know we are on the side or right in this.