Living Constitution
In United States constitutional interpretation, the living Constitution is the claim that the Constitution and other constitutions, holds a dynamic meaning, evolving and adapting to new circumstances, without being formally amended. A living Constitution is said to develop alongside the needs of a society, providing a more malleable tool for governments. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases. The constitution referred to as the living law of the land as it is transformed according to necessities of the time and situation.
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 its original meaning or intent is sometimes 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 an amendment process because allowing judges to change the Constitution's meaning undermines democracy. Another argument against a living constitution is that legislative action, rather than judicial decisions, can better represent the will of the people in a constitutional republic since periodic elections allow individuals to vote on who will represent them in Congress and members of Congress should be responsive to the views of their constituents. This argument relies, in part, on the fact that federal judges have life tenure and are far less at risk of losing their jobs than members of Congress. The primary alternative to a living constitution theory is "originalism".
Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.
Living constitution
Background
During the Progressive Era, many initiatives were promoted and fought for, but were prevented from coming to full fruition in either legislative bodies or judicial proceedings. One case in particular, Pollock v. Farmers' Loan & Trust Co., enraged early progressive activists hoping to achieve an income tax. This led progressives to the belief that the Constitution was unamendable, and ultimately to find a new way to achieve the desired level of progress. Other proposals were considered, such as making the methods for directly amending the Constitution easier.Origins
The phrase originally derives from the title of a 1927 book of that name by Professor Howard Lee 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. The earliest mentions of the Constitution as "living", particularly in the context of a new way of interpreting it, comes out of Woodrow Wilson's book Constitutional Government in the United States where he wrote:Living political constitutions must be Darwinian in structure and in practice.
Wilson strengthened this view, at least publicly, while he campaigned for President in 1912. He said:
Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission - in an era when "development," "evolution," is the scientific word - to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
One could also reasonably argue that Thomas Jefferson himself presented the idea of evolving Constitutional interpretations. In an 1816 letter to Samuel Kercheval, excerpted on Panel 4 of the Jefferson Memorial, he wrote
But I know also, that 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 disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and 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.
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, 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 Judge Richard Posner:
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. Edmund Randolph, in his Draft Sketch of Constitution, wrote this:The living constitution's proponents 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.
James Madison, principal author of the U.S. Constitution and often called the "Father of the Constitution," said this in argument for original intent and against changing the Constitution by evolving language:
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 Eighth Amendment. This was seen in the 1958 Supreme Court case of Trop v. Dulles: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 broad interpretations of the equal protection and due process clauses 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 married women or descendants of slaves are not entitled to liberty or equal protection with regard to coverture laws, slavery laws and their legacy as they were not expressly seen as free from such by all ratifiers 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 was 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 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.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: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 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. However, just as some conservative theorists have embraced the term Constitution in Exile, 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 in favor
Two 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 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., wrote in 1914: 'Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil. Their significance is not to be gathered simply from the words and a dictionary, but by considering their origin and the line of their growth.'"
A prominent endorsement of the Living Constitution concept was heard in the 2000 presidential campaign by the Democratic candidate, Al Gore.
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 argues in his book Knowledge and Decisions 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. 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.
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 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 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:
Professor Michael Ramsey has criticized living constitutionalism on the grounds that there are very little limits on what it could achieve. Ramsey uses Kenneth Jost's argument in favor of the unconstitutionality of the Electoral College to argue that a living constitutionalist could believe that "ven something expressly set forth in the Constitution can be unconstitutional if annoying, inconvenient or ill-advised." Likewise, Professors Nelson Lund and John McGinnis have argued that it would be difficult for a living constitutionalist such as Robert Post to object if the U.S. Supreme Court would have used its reverse incorporation principle together with the principles of Reynolds v. Sims to make the U.S. Senate apportioned exclusively based on population and nevertheless retained the trust of the American people after doing this.
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 is accurate, however, it has been applied selectively. For example, few conservatives levy the same claim against the Supreme Court for its decisions concerning sovereign immunity: a term also found in the Eleventh Amendment by the Supreme Court.
Internationally
Canada
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 or that the governor general always grants 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 , held that Parliament 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: