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Living Constitution

The Living Constitution is a concept in constitutional interpretation which suggests that the Constitution should be seen as continually evolving with the society that implements it. The idea is associated with views that modern values 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 First, the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary.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, contends that the constitutional framers 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. One of its most vocal critics is Supreme Court Justice Antonin Scalia.

Living constitution

The term originally derives from the title of a 1937 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.

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 252 U.S. 416 (1920), Holmes made this remark on the nature of the constitution.

"With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved."

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 slavery, deny women's suffrage, and to perpetuate many other 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:

A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home.... We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution.

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's statement in the preamble of the Committee of Detail at the Constitutional Convention is often cited:

In the draught of a fundamental constitution, two things deserve attention:

1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

This decision to use "simple and precise language, and general propositions," such that the Constitution could "be accommodated to times and events," is often cited as the "genius" of the Constitutional framers, and 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, 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.

Other Founding Fathers cited the need to interpret the Constitution in light of changing circumstances. Thomas Jefferson 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:

[T]he words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

While the Court was referring in Trop only to the Eighth Amendment'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 a robust protection of civil liberties. Central to this has been the push for broad interpretations of the equal protection clause and the due process clause of the 5th and 14th Amendments.

Proponents of the Living Constitution suggest that a dynamic view of civil liberties 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 as inherently disregarding Constitutional language, suggesting that one should not simply read and apply the constitutional text.

Jack Balkin 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," 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.

Lawlessness

Related to judicial activism, the Living Constitution is often characterized as a license for lawlessness, due to the alleged resulting absence of any fixed constitutional meaning. Again, however, whether a contemporary meaning or a historical meaning are more fixed or flexible is a matter of intense debate.

In fact, the living constitution theory may reduce an individual's ability to influence his government, transferring that decision making power to unelected judges, as has been noted in a speech by Justice Antonin Scalia:

''If you think aficionados of a living Constitution want to bring you flexibility, think again.... You think the death penalty is a good idea? (Under the formalist understanding of the Constitution, but not under the Living Constitution understanding, you can) persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

In this sense it can be also be argued that the living constitution theory does not create lawlessness, but transfers the law making power from the legislative branch to the judicial branch of government.

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 in 1926:

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.

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, 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 (which similarly gained popularity through use by liberal critics), and textualism 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 in his Knowledge and Decisions 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 are often described by conservative critics such as Robert Bork 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 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 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, which has a similar ambiguity of meaning and is also used primarily as an epithet.

Justice Antonin Scalia has routinely castigated "living Constitution" doctrine. In one particularly strongly-worded attack, he noted that:

[There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn't say other things . . . [Proponents of the living constitution want matters to be decided] not by the people, but by the justices of the Supreme Court . . . They are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable."

Arguments in favor

One of the strongest arguments in support of the concept of a "living Constitution" is the fact that the Constitution itself is silent on the matter of constitutional interpretation. Proponents of the living Constitution note that the issue of how to interpret a legal text has spurred ongoing debate for centuries. 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. In either case, future generations are free, and in fact compelled, to reexamine for themselves how to properly interpret the Constitution.

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

Moreover, it has been suggested that a failure to take societal change into account leads to a separate problem: that of stare decisis. A Court that determines that the only proper method of interpretation is to try to reconstruct either the meaning of statutes at the time they were enacted, or the intent of the legislature that enacted it, will inevitably either overrule countless previous Court decisions that it feels were arrived at incorrectly or tie itself into logical knots in trying to make sense of contradictory opinions.

An evolving Constitution also makes sense for those who view the Constitution not as merely 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.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. This is misleading in several ways:

First, it improperly correlates "Activism" with any one particular method of constitutional interpretation. An activist judge, by common definition, is simply a judge who overrules the legislature, usually by invalidating a law. But this says nothing about the reason or method used to arrive at a judge's conclusion. If a law violates a Constitutional principle, then it is precisely the judge's duty to invalidate it. In this respect, some argue that the entire basis for an independent, unelected, judicial branch with the powers of judicial review is to have a neutral magistrate whose only allegiance is to the rule of Constitutional law.

Second, if "activist" merely refers to judges who overrule legislative acts, then the most activist recent members of the Supreme Court -- by very wide margins -- have been self-proclaimed Originalists, Strict Constructionists, and political conservatives: namely, Antonin Scalia, Clarence Thomas, and the late Chief Justice William Rehnquist. This is largely due to Congress having passed laws pursuant to more modern and expansive interpretations of the Constitution, such as the broader scope of Congress's powers under the Commerce Clause which emerged during the time of the New Deal, interpretations which are at odds with Originalist views concerning the powers of Congress. The result, however, is Originalist Justices repeatedly voting to invalidate legislatively enacted laws.

Third, 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: a term also found nowhere in the Constitution but "read in" to the Eleventh Amendment by the Supreme Court, and has since been expanded by the recent conservative majority. Moreover, in the case of Kelo v. New London, the conservatives Justices on the Supreme Court showed a willingness to read a "public use requirement" into the Fifth Amendment government power of eminent domain, despite its origins by implication, but also again to broad Conservative support.

Internationally

In Canada, the living constitution is described under the living tree doctrine.

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, 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:

The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.

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
Balkin, Jack M. "Abortion and Original Meaning".
Originalism Redux, by Brian Leiter http://leiterreports.typepad.com/blog/2005/06/originalism_red.html