Living Constitution

The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

has a dynamic meaning or that it has the properties of a human in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.

While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist

Pragmatism

Pragmatism is a philosophical tradition centered on the linking of practice and theory. It describes a process where theory is extracted from practice, and applied back to practice to form what is called intelligent practice...

view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary. The second, relating to intent

Original intent

Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...

, contends that the constitutional framers

Philadelphia Convention

The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...

specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation .

A prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the Democratic candidate, Al Gore

Al Gore

Albert Arnold "Al" Gore, Jr. served as the 45th Vice President of the United States , under President Bill Clinton. He was the Democratic Party's nominee for President in the 2000 U.S. presidential election....

. One of its most vocal critics is Supreme Court

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

Justice Antonin Scalia

Antonin Scalia

Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...

The term originally derives from the title of a 1927 book of that name by Prof. Howard McBain, while early efforts at developing the concept in modern form have been credited to figures including Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson

Woodrow Wilson

Thomas Woodrow Wilson was the 28th President of the United States, from 1913 to 1921. A leader of the Progressive Movement, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...

Judicial pragmatism

Although "the living Constitution" is itself a characterization rather than a specific method of interpretation, the phrase is associated with various non-originalist theories of interpretation. The most common association is with judicial pragmatism. In the course of his judgment in Missouri v. Holland
Missouri v. Holland
Missouri v. Holland, 252 U.S. 416 , the United States Supreme Court held that protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the...

252 U.S. 416 (1920), Holmes made this remark on the nature of the constitution.
According to the pragmatist view, the Constitution should be seen as evolving over time as a matter of social necessity. Looking solely to original meaning, when the original intent was largely to permit many practices universally condemned today, is under this view cause to reject pure originalism out of hand.

This general view has been expressed by the libertarian Judge Richard Posner

Richard Posner

Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...

:
This pragmatist objection is central to the idea that the Constitution should be seen as a living document. Under this view, for example, constitutional requirements of "equal rights" should be read with regard to current standards of equality, and not those of decades or centuries ago, because the alternative would be unacceptable.

Original intent

In addition to pragmatist arguments, most proponents of the living Constitution argue that the Constitution was deliberately written to be broad and flexible to accommodate social or technological change over time. For this proposition, Edmund Randolph

Edmund Randolph

Edmund Jennings Randolph was an American attorney, the seventh Governor of Virginia, the second Secretary of State, and the first United States Attorney General.-Biography:...

's statement in the preamble of the Committee of Detail

Committee of Detail

The Committee of Detail was a committee established by the Philadelphia Convention on June 23, 1787 to put down a draft text reflecting the agreements made by the Convention up to that point, including the Virginia Plan's 15 resolutions. It was chaired by John Rutledge, and other members included...

at the Constitutional Convention

Philadelphia Convention

is often cited:

The living constitution's proponent's assert that Randolph's injunction to use "simple and precise language, and general propositions," such that the Constitution could "be accommodated to times and events," is evidence of the "genius" of the Constitutional framers. It is one of the main arguments for the living Constitutional framework. Among other quotes cited in support of the living Constitution is Justice John Marshall's in McCulloch v. Maryland
McCulloch v. Maryland
McCulloch v. Maryland, , was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland...

, in which he described the Constitution as "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." These statements are seen as a call for respecting the text and meaning of constitutional language, but also for allowing contemporary needs or values to inform its application to modern events.

James Madison

James Madison

James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...

, principal author of the U.S. Constitution and often called the "Father of the Constitution". Said this:
Other Founding Fathers cited the need to interpret the Constitution in light of changing circumstances. Thomas Jefferson

Thomas Jefferson

Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...

wrote, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." But he also warned against treating the Constitution as "a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." Jefferson's understanding of how the Constitution should be interpreted is made clear in a letter he wrote March 27, 1801, after assuming the Presidency, "The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption,—a meaning to be found in the explanations of those who advocated (it)...These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question."

Some living Constitutionists seek to reconcile themselves with the originalist view; e.g., one that interprets the Constitution as it was originally intended to be interpreted.

Applying a living constitution

One application of the living Constitution framework is seen in the Supreme Court's reference to "evolving standards of decency" under the 8th Amendment. This was seen in the 1958 Supreme Court case of Trop v. Dulles
Trop v. Dulles
Trop v. Dulles, 356 U.S. 86 , was a federal case in the United States in which the Supreme Court ruled, 5-4, that it was unconstitutional for the government to revoke the citizenship of a U.S...

:
While the Court was referring in Trop only to the Eighth Amendment

Eighth Amendment to the United States Constitution

The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...

's prohibition on cruel and unusual punishment, the underlying conception - namely, that the Constitution is written in broad terms, and that the Court's interpretation of those terms should reflect current societal conditions - is the heart of the "living Constitution" doctrine.

Equal protection and due process clauses

From its inception, one of the most controversial aspects of the living Constitutional framework has been its association with broad interpretations of the equal protection

Equal Protection Clause

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...

and due process clauses of the 5th

Fifth Amendment to the United States Constitution

The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

and 14th Amendment

Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

s.

Proponents of the Living Constitution suggest that a dynamic view of civil liberties

Civil liberties

Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

is vital to the continuing effectiveness of our Constitutional scheme. Not only is it currently seen as unacceptable to suggest that minorities or women are not entitled to liberty or equal protection as they were not at the time of the Constitutional ratification, but neither do advocates of the living Constitution believe that the framers intended, or certainly demanded, that their 18th century practices be regarded as the permanent standard for these ideals.

Living Constitutionalists suggest that broad ideals such as "liberty" and "equal protection" were included in the Constitution precisely because they are timeless, due to their inherently dynamic nature. Liberty in 1791, it is argued, was never thought to be the same as liberty in 1591 or 1991, but rather was seen as a principle transcending the recognized rights of that day and age. Giving them a fixed and static meaning in the name of "originalism," thus, is said to violate the very theory it purports to uphold.

Points of contention

As the subject of significant controversy, the idea of a Living Constitution is plagued by numerous conflicting contentions.

Disregard of Constitutional language

The idea of a Living Constitution is often characterized by Justice Scalia and others as inherently disregarding Constitutional language, suggesting that one should not simply read and apply the constitutional text.

Jack Balkin

Jack Balkin

Jack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School...

argues that this is not the intended meaning of the term, however, which suggests rather that the Constitution be read contemporaneously, rather than historically. Such an inquiry often consults the original meaning or intent, along with other interpretive devices. A proper application, then, involves some reconciliation between these various devices, not a simple disregard for one or another.

Judicial activism

Another common view of the Living Constitution is as synonymous with "judicial activism

Judicial activism

Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

," a phrase generally used to accuse judges of resolving cases based on their own political convictions or preferences.

The pejorative "judicial activism" is most commonly subjective, so it is not proper to classify all decisions made using the Living interpretation as activist. More properly, it could be argued that a Living interpretation leaves much more room for political bias than other interpretations, thus creating more opportunity for misuses of judicial power.

Comparisons

In sum, it may be noted that the Living Constitution does not itself represent a detailed philosophy, and that distinguishing it from other theories can be difficult. Indeed, Living Constitutionalists often suggest that it is the true originalist philosophy, while originalists generally agree that phrases such as "just compensation" should be applied differently than 200 years ago. It has been suggested that the true difference between these judicial philosophies does not regard "meaning" at all, but rather, the correct application of Constitutional principles. A Living Constitutionalist would not necessarily state, for instance, that the meaning of "liberty" has changed since 1791. It may be what it always has always been: a general principle recognizing individual freedom. The important change then might be in what is recognized as liberty today, that was not fully recognized two centuries ago. This view was enunciated for the Supreme Court by Justice George Sutherland

George Sutherland

Alexander George Sutherland was an English-born U.S. jurist and political figure. One of four appointments to the Supreme Court by President Warren G. Harding, he served as an Associate Justice of the U.S...

in 1926:
To complete the example, the question of how to apply a term like "liberty" may not be a question of what it "means," but rather a question of what liberties are presently entitled to constitutional protection. Living Constitutionalists tend to advocate a broad application in accordance with current views, while originalists tend to seek an application consistent with views at the time of ratification. Critics of the Living Constitution assert that it is more open to judicial manipulation, while proponents argue that theoretical flexibility in either view provides adherents extensive leeway in what decision to reach in a particular case.

Debate

By its nature, the "living Constitution" is not held to be a specific theory of construction, but a vision of a Constitution whose boundaries are dynamic, congruent with the needs of society as it changes. This method also has its critics; in the description of the late Chief Justice William Rehnquist

William Rehnquist

William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

, it "has about it a teasing imprecision that makes it a coat of many colors."

It is important to note that the term "living Constitution" is sometimes used by critics as an aspersion, while some advocates of the general philosophy avoid the phrase. Opponents of the doctrine tend to use the term as an epithet synonymous with judicial activism. (Itself a hotly debated phrase.) However, just as some conservative theorists have embraced the term Constitution in Exile

Constitution in exile

Constitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution allegedly not having been enforced according to their "original intent" or "original meaning"...

(which similarly gained popularity through use by liberal critics), and textualism

Textualism

Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...

was a term which once had pejorative connotations before its widespread acceptance as a badge of honor, some liberal theorists have embraced the image of a living document as appealing.

Arguments against

The strongest argument against the doctrine of "Living Constitution" comes not from its moderate use, but when the concept is seen as promoting activism. The term presumes the premise of “that which is written is insufficient in light of what has transpired since”. This more moderate concept is generally not the target of those who are against the "Living Constitution". The concept considered perverse by constructionalists is "making the law say what you think it should say, rather than submitting to what it does say".

Economist Thomas Sowell

Thomas Sowell

Thomas Sowell is an American economist, social theorist, political philosopher, and author. A National Humanities Medal winner, he advocates laissez-faire economics and writes from a libertarian perspective...

in his Knowledge and Decisions

Knowledge and Decisions

Knowledge and Decisions is a non-fiction book by American economist Thomas Sowell. Sowell explicates social and economic knowledge and how it is transmitted through the many facets of society, and how that transmission affects decisions made. The book's central theme is drawn from F.A...

argues that since the original designers of the Constitution provided for the process of changing it, they never intended for their original words to change meaning. Sowell also points out cases where arguments are made that the original framers never considered certain issues, when clear record of them doing so exists.

Another argument against the concept of a "living Constitution" ironically, is similar to the argument for it; the fact that the Constitution itself is silent on the matter of constitutional interpretation. The doctrine of the "living Constitution" relies on the concept that the original framers either could not come to a consensus about how to interpret, or they never intended any fixed method of interpretation. This would then allow future generations the freedom to reexamine for themselves how to interpret the Constitution.

This view does not take into account why the original constitution does not allow for judicial interpretation in any form. The Supreme Court's power for constitutional review, and by extension its interpretation, did not come about until Marbury v. Madison in 1803. The concept for a "living constitution" therefore relies on an argument regarding the writing of the constitution that had no validity when the constitution was written.

The views of constitutional law scholar Laurence Tribe

Laurence Tribe

Laurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....

are often described by conservative critics such as Robert Bork

Robert Bork

Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...

as being characteristic of the “living Constitution paradigm” they condemn. Bork labels Tribe’s approach as "protean," meaning that it was whatever Tribe needed it to be to reach a desired policy outcome. (Tribe rejects both the term and the description) Such a construction appears to define “living Constitution” doctrine as being an ends dictate the means anti-law philosophy. Some liberal constitutional scholars have since implied a similar charge of intellectual dishonesty regarding originalists, noting that they virtually never reach outcomes with which they disagree. (Many academic political scientists believe that justices and appeals judges are willing to alter their outcomes to attain philosophical majorities on certain questions.)

In 1987, Supreme Court Justice Thurgood Marshall

Thurgood Marshall

Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

delivered a lecture, "The Constitution: A Living Document," in which he argued that the Constitution must be interpreted in light of the moral, political, and cultural climate of the age of interpretation. If Judge Bork's formulation of "the living Constitution" is guiding, then any interpretation of the Constitution other than originalism (of one form or another) implicates a living Constitution. If, however, Justice Marshall's formulation is guiding, then it is unclear whether methods derived from law and economics

Law and economics

The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...

or the Moral Constitution might be implicated.

References to "the living Constitution" are relatively rare among legal academics and judges, who generally prefer to use language that is specific and less rhetorical. It is also worth noting that there is disagreement among opponents of "the living Constitution" about whether the idea is the same as, implied by, or assumed by judicial activism

Judicial activism

, which has a similar ambiguity of meaning and is also used primarily as an epithet.

Justice Clarence Thomas has routinely castigated "living Constitution" doctrine. In one particularly strongly worded attack, he noted that:
Justice Antonin Scalia has expressed similar sentiments. He commented:
He also said:

Arguments in favor

One of the arguments in support of the concept of a "living Constitution" is the concept that the Constitution itself is silent on the matter of constitutional interpretation. Proponents of the living Constitution assert that the Constitutional framers, most of whom were trained lawyers and legal theorists, were certainly aware of these debates; they also would have known the confusion that not providing a clear interpretive method would cause. Had the framers meant for future generations to interpret the Constitution in a specific manner, they could have indicated such within the Constitution itself. The lack of guidance within the text of the Constitution suggests, therefore, that either: a) there was no such consensus, or b) the framers never intended any fixed method of constitutional interpretation.

Relating to the pragmatic argument, it is further argued that if judges were denied the opportunity to reflect on changes to modern society in interpreting the scope of Constitutional rights, the resulting Constitution either would not reflect current mores

Mores, in sociology, are any given society's particular norms, virtues, or values. The word mores is a plurale tantum term borrowed from Latin, which has been used in the English language since the 1890s....

and values, or would necessitate a constant amendment process to reflect our changing society.

Another defense of the Living Constitution is based in viewing the Constitution not merely as law, but as a source of foundational concepts for the governing of society. Of course, laws must be fixed and clear so that people can understand and abide by them on a daily basis. But if the Constitution is more than a set of laws, if it provides guiding concepts which themselves will in turn provide the foundations for laws, then the costs and benefits of such an entirely fixed meaning are very different. The reason for this is simple: if a society locks itself into a previous generation's interpretive ideas, it will wind up either constantly attempting to change the Constitution to reflect changes, or simply scrapping the Constitution altogether. While we remain bound by the rights and powers provided in the Constitution, thus, the scope those rights and powers should account for society's present experiences. "Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

, wrote in 1914: 'The provisions of the Constitution are not mathematical formulas....They are organic, living institutions.'" James, Leanoard Frank (1964). The Supreme Court in American Life. Chicago: Scott, Foresman. Pg. 159.

The Living Constitution and Activism

One accusation made against the living Constitution method states that judges that adhere to it are "Activists" and seek to legislate from the bench. What is generally meant by this is that a judge winds up substituting his judgment regarding the validity, meaning, or scope of a law for that of the democratically elected legislature.

Adherents of a living Constitution method are often accused of "reading rights" into the Constitution; that is, they are accused of claiming that the Constitution implies rights found nowhere in the constitutional text. For example, in Roe v. Wade, the Supreme Court held that implicit within the Constitution was a "right to privacy" and that this right extends to a woman's right to decide whether to terminate a pregnancy. As such, the Court held that the government could only regulate this right with a compelling interest, and even then only if the regulation was as minimally intrusive as possible. Conservative critics have since accused the Supreme Court of activism in inventing a Constitutional right to abortion. This accusation may be accurate (in that abortion rights indeed had not previously been recognized), but it is also used selectively. For example, few conservatives levy the same claim against the Supreme Court for its decisions concerning Sovereign Immunity

Sovereign immunity

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....

: a term also found nowhere in the Constitution but "read in" to the Eleventh Amendment

Eleventh Amendment to the United States Constitution

The Eleventh Amendment to the United States Constitution, which was passed by the Congress on March 4, 1794, and was ratified on February 7, 1795, deals with each state's sovereign immunity. This amendment was adopted in order to overrule the U.S. Supreme Court's decision in Chisholm v...

by the Supreme Court, and has since been expanded by the recent conservative majority.

Internationally

In Canada, the living constitution is described under the living tree doctrine
Living tree doctrine
In Canadian law, the living tree doctrine is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times....

.

Unlike the case of the United States, the fact that the constitution of Canada was intended from the outset to encompass unwritten conventions and legal principles is beyond question. For example, the text of the constitution does not mention the office of prime minister, nor the requirement that the governor general grant royal assent to bills. Principles such as democracy, the Implied Bill of Rights, the rule of law and judicial independence are held to derive in part from the preamble of the constitution, which declared the constitution of Canada to be "similar in principle" to that of the United Kingdom.

The concept of an evolving constitution has notably been applied to determine the division of powers between provinces and the federal government in areas of jurisdiction not contemplated at the time of enactment of the British North America Act. For example, authority over broadcasting has been held to fall within the federal "peace, order and good government" power.

The Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

, in Re: Same-Sex Marriage (2004), held that Parliament (as opposed to provincial legislatures) had the power to define marriage as including same-sex unions. It rejected claims that the constitutionally enumerated federal authority in matters of "Marriage and Divorce" could not include same-sex marriage, because marriage as conceived in 1867 was necessarily opposite-sex:
It has been argued that a primary determinative factor in whether a legal system will develop a "living constitutional" framework is the ease with which constitutional amendments can be passed.

External links

Alive and Kicking: Why no one truly believes in a dead Constitution, by Jack M. Balkin http://www.slate.com/id/2125226/
Synthesizing originalism and Living Constitutionalism, by Jack Balkin http://balkin.blogspot.com/2005/08/synthesizing-originalism-and-living.html
Confusion about Originalism, by Jack Balkin http://balkin.blogspot.com/2006/08/confusion-about-originalism.html
Originalism Redux, by Brian Leiter http://leiterreports.typepad.com/blog/2005/06/originalism_red.html
Video of a debate on the Living Tree doctrine between Supreme Court of Canada Justice Ian Binnie
Ian Binnie
William Ian Corneil Binnie was a puisne justice of the Supreme Court of Canada, serving from 1998 to 2011. Of the justices appointed to the Supreme Court in recent years, he is one of the few to have never sat as a judge prior to his appointment.- Personal life and career as lawyer :Binnie was...

and Supreme Court of the United States Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...

.

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