The impact of George Washington's ignorance of the internet on Constitutional interpretation

In Little Rock on his book tour, Supreme Court Justice Stephen Breyer argued (in the words of an AP reporter) "that judges need to apply the Constitution's values with an eye toward the changing times." The Court's job, he said, was to discern how to apply the Founders' values to the modern world "George Washington didn't really have a view about the Internet," he said, drawing laughter from the crowd of about 650 people at the Statehouse Convention Center. This is a commonly stated observation, and it's always puzzled me that liberals find it clever. I mean, George Washington did not have a view about lots of things: telegraphs, phonographs, typewriters, telephones, microphones, electrified megaphone, radios, televisions, highway billboards, walkie-talkies, and Ubbi Dubbi. So what? The point Justice Breyer is making is that the new technology sometimes raises questions about how pre-existing laws should be applied. But this does not change the judge's job, which is to apply the law as it is written to the new facts. Justice Breyer's comment that the Court "should apply the Constitution's values with a pragmatic view toward present circumstances, rather than focusing only on the document's historical meaning" is at best banal, and at worst pernicious. First, no judge disregards "present circumstances" while "focusing only on the document's historical meaning." The originalist judge does not, for example, define the First Amendment's provision that Congress shall make no law ... abridging the freedom of speech" and define "speech" to mean only those forms of speech available in 1789 such as pamphlets and books, but not radio shows and movies. (This is what Judge Breyer is suggesting his opponents do, with his joke about the internet). Rather, originalist judges are inclined to think that the free speech clause protects only speech, as that term was generally understood, regardless of method of transmission. Thus, an originalist has no doubt that statements on internet blogs qualify as "speech," even though George Washington never read one, but are skeptical about whether nude dancing does. If the judge sees his role as to apply the Constitution's "values" in a "pragmatic" way, it is very tempting for him to think that any result that seems"unpragmatic" or "impractical" must be incorrect. Bans on abortion seem impractical given the judge's views about family arrangements and sexual morality, illegitimacy rates, etc., so ipso facto the bans on abortion must be unconstitutional. "Pragmatism" becomes a synonym for "a result that I like." Honoring the Constitution's "values" can be a way to dodge the limitations of the actual text. But what better encapsulates the Constitution's genuine "values" than the Constitution's words?If the judge sees his task as applying the words of the Constitution to present circumstances, the words themselves as a tether, which can prevent him or her from straying too far from what the people actually agreed to when they approved the Constitution (which is, after all, a document made of words). This approach does not always prevent a judge from allowing his own preferences to cloud his interpretation -- not by a long shot --but it's better than the alternative, which provides no brake at all on judicial willfulness. Justice Scalia tells a joke to illustrate this. Two men are walking in the woods and come across an angry bear. They start running. The first man says, "I don't think we're going to make it." the second guy responds, "I don't need to outrun the bear, I just need to outrun you!" To Breyer's credit, he is aware of this quip and usually includes it in his speeches. Which makes it even more peculiar that he is so impressed with that crack about George Washington and the internet.