Living Constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. Proponents view the constitution as developing alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organicists.
The arguments for the Living Constitution vary but 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 so 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 often argue that the Constitution should be changed by an amendment process because allowing judges to change the Constitution's meaning undermines democracy. Another argument against the Living Constitution is that legislative action, rather than judicial decisions, better represent the will of the people in the United States in a constitutional republic, since periodic elections allow individuals to vote on who will represent them in the United States Congress, and members of Congress should be responsive to the views of their constituents. The primary alternative to a living constitution theory is "originalism." Opponents of the Living Constitution often regard it as a form of judicial activism.
Legal theorist Martin David Kelly argues that the question of whether a provision of a constitution should be given its original or current meaning arises only if it is capable of applying across time. Kelly argues that most constitutional provisions are 'always speaking'—they are operative on an ongoing basis, indefinitely—and so the meaning issue is a live one; but that some constitutional provisions are 'momentary' and so there is no basis for giving them a dynamic meaning. This point, Kelly argues, undermines some leading arguments against dynamic interpretation.
History
During the Progressive Era, many initiatives were promoted and fought for but prevented from full fruition by 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. That led progressives to the belief that the Constitution was unamendable and ultimately for them to find a new way to achieve the desired level of progress. Other proposals were considered, such as making the amending formula easier.Origins
The phrase originally derives from the title of a 1927 book of that name by Professor Howard Lee McBain, and early efforts at developing the concept in its modern form have been credited to figures like 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 from Woodrow Wilson's book Constitutional Government in the United States in which he wrote:Living political constitutions must be Darwinian in structure and in practice.
Wilson strengthened that view, at least publicly, while he campaigned for president in 1912:
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.
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, most commonly judicial pragmatism. In the course of his judgment in Missouri v. Holland 252 U.S. 416, Justice Holmes remarked on the Constitution's nature: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, which would largely permit many practices that are now universally condemned, thus causes the rejection of pure originalism out of hand.
That general view has been expressed by Judge Richard Posner:
The pragmatist objection is central to the idea that the Constitution should be seen as a living document. Under that view, for example, constitutional requirements of "equal rights" should be read with regard to current standards of equality, not those of decades or centuries ago, an alternative that 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:The doctrine'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 its framers.
James Madison, the principal author of the 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, which interprets the Constitution based on its original meaning.
Application
One application of the Living Constitution's framework is seen in the Supreme Court's reference to "evolving standards of decency" under the Eighth Amendment, as was seen in the 1958 Supreme Court case of Trop v. Dulles:The Court referred in Trop only to the Eighth Amendment's prohibition on cruel and unusual punishment, but its underlying conception was that the Constitution is written in broad terms and that the Court's interpretation of those terms should reflect current societal conditions, which is the heart of the Living Constitution.
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 Clause and the Due Process Clause of the Fifth and the Fourteenth Amendments.Proponents of the Living Constitution suggest that a dynamic view of civil liberties is vital to the continuing effectiveness of the constitutional scheme. It is now 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 those who ratified the Constitution. Advocates of the Living Constitution believe that the framers never intended their 18th-century practices to be regarded as the permanent standard for those ideals.
Living Constitutionalists suggest that broad ideals such as "liberty" and "equal protection" were included in the Constitution precisely because they are timeless and for their inherently dynamic nature. Liberty in 1791 is argued to have never been thought to be the same as liberty in 1591 or in 1991, but it was rather seen as a principle transcending the recognized rights of the day and age. Giving them a fixed and static meaning in the name of "originalism" is thus said to violate the very theory that 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 and as suggesting that one should not simply read and apply the constitutional text.Jack Balkin argues that was not the intended meaning of the term, however, and suggests 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 the 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 that is generally used to accuse judges of resolving cases based on their own political convictions or preferences.Comparisons
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, supporters often suggest that it is the true originalist philosophy, but 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 the judicial philosophies regards not meaning at all but rather the correct application of constitutional principles. A supporter of the Living Constitution would not necessarily state, for instance, that the meaning of "liberty" has changed since 1791, but it may be what it has always been, a general principle that recognizes individual freedom. The important change might be in what is recognized as liberty today but was not fully recognized two centuries ago. That 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 which liberties are now entitled to constitutional protection. Supporters of a Living Constitution tend to advocate a broad application in accordance with current views, and 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, but proponents argue that theoretical flexibility in either view provides adherents extensive leeway in what decision to reach in a particular case.