Living Constitution

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The United States Supreme Court.
The United States Supreme Court.

In United States legal discourse, the Living Constitution is a theory of constitutional interpretation which premises that the Constitution is, to some degree, dynamic. As the direct counter to originalism, the philosophy centered on meaning at the time of ratification, the theory of a "living" Constitution suggests a founding document that remains interdependent with an evolving society. Its proponents thus argue that societal progress must be taken into account when interpreting key constitutional phrases.[1]

While the philosophical underpinnings of the Living Constitution vary, they can generally be broken into two categories:

  • Pragmatism, the belief that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter.
  • Intent, the argument that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document.

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

I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.

The term originally derives from the title of a 1937 book of that name by Prof. Howard McBain, [2] while the earliest efforts at developing the concept in modern form have been credited to figures including Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson.[3]

Contents

[edit] The Living Constitution and 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. The most common of these is often known as judicial pragmatism.

According to the pragmatist view, the Constitution should be regarded as dynamic essentially because the cost of not doing so is seen as too high. 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 for pragmatists 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 when such words meant something different, simply because the alternative would be unacceptable.

[edit] The Living Constitution and Original Intent

Although the theory of a living Constitution is often regarded as prioritizing pragmatism over original intent, this dichotomy is rejected by many of the doctrine's supporters. Most proponents argue that the Constitution was deliberately written to be broad and flexible to the changing needs of vastly different generations.

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. It is also a primary justification for the Living Constitutional framework. Randolph's statement, and others like it, are seen as a call for respecting the text and meaning of the general constitutional propositions, but also for considering contemporary exigencies as well, as appears to have been fully expected.

This is also why Living Constitutionists often claim the truly originalist view; e.g., one that interprets the Constitution as it was originally intended to be interpreted.

[edit] The Living Constitution Applied

The premise for a living Constitution was concisely articulated in the 1958 Supreme Court case of Trop v. Dulles:[4]

[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 conception that underlies the phrase - 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 "living Constitution" doctrine.

[edit] The Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments

The Warren Court, led by Chief Justice Earl Warren, is recognized as having dramatically expanded civil liberties recognized under the Constitution.
The Warren Court, led by Chief Justice Earl Warren, is recognized as having dramatically expanded civil liberties recognized under the Constitution.

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.

[edit] Misconceptions

As the subject of significant controversy, the idea of a Living Constitution is plagued by numerous misconceptions. Most often, these involve equating the term with judicial philosophies that are separate and distinct. In establishing the meaning of the term as used by its advocates, it is helpful to address some of the more common mischaracterizations. (As noted below, the term has also gained usage as an aspersion; in this context, the "misconceptions" may become the intended meaning).

[edit] Textualism

It is often said that a Living Constitution implies a disregard for constitutional language. To call the Constitution "living," some say, is to suggest that one should not simply read and apply the constitutional text.

This is not the intended meaning of the term, however. What it suggests, rather, is that the Constitution be read contemporaneously, rather than historically. As an example, when the Constitution requires "just compensation" for the government exercise of eminent domain, the Living Constitutionalists would not disregard the words "just compensation." Instead, they would ask what is "just compensation" at the present date.

In fact, 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.[5]

Associate Justice Antonin Scalia of the U.S. Supreme Court, claims to follow the principle of textualism in his book A Matter of Interpretation.

[edit] Judicial Activism

Another common characterization of the Living Constitution is as synonymous with "judicial activism," a phrase generally used to accuse Judges of resolving cases based on their own personal whims or preferences. This again, however, is not the intended meaning of the term. In fact, Living Constitutionalists, like adherents to other judicial philosophies, often condemn such an approach.

Of course, there are philosophies (textualism, strict constructionism, or judicial restraint) which could be described as directly attacking "judicial activism." Like its counterpart of originalism, however, the Living Constitution does not speak to this issue. A Living Constitutionalist (or originalist), thus, could be a textualist, strict constructionist or supporter of judicial restraint, or some combination of each.

Nevertheless, there may be certain distinctions which can be drawn. For instance, Living Constitutionalists often cite to emerging societal norms in guiding their constitutional interpretation, whereas originalists tend to limit their consideration to societal values that are "deeply rooted in our Nation's history and tradition." Which approach is supported by greater legal authority, however, (or is more "activist") is a matter of intense debate. (One must note that the originalist position does not, by definition, support the latter.)

[edit] Lawlessness

Related to judicial activism, the Living Constitution is often characterized as a license for lawlesness, due to the alleged resulting absence of any fixed constitutional meaning. Again, however, a Living Constitution does not call for Constitutional restrictions to be ignored, but that they be read with regard for contemporary society. Whether a contemporary meaning or a historical meaning are more fixed or flexible is again a matter of intense debate.

In fact, a Living Constitution may result in less government flexibility, 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? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility

[edit] 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.

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, but it has been argued that the theoretical flexibility on both sides provides adherents extensive leeway in what decision to reach in a particular case.[6]

[edit] Debate

The late Chief Justice William Rehnquist has criticized the notion of a Living Constitution.
The late Chief Justice William Rehnquist has criticized the notion of a Living Constitution.

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." [1]

It is important to note that the term "living Constitution" is often used by critics as an aspersion. Many advocates of the general philosophy object to the phrase, which they see as misrepresentative and a straw-man tactic by their adversaries. 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.

[edit] Arguments Against a Living Constitution

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.)[citation needed]

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.

[edit] Arguments in Favor of a Living Constitution

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.[7] 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.

By not binding future generations to any single method of interpretation, some argue that the framers affirmatively voiced their approval for the Constitution to always be interpreted contemporarily.

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 it 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 generations' 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.

[edit] Justice Scalia's Reported Comments on "Living Constitution"

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.""[8]

[edit] In Canada

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

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.[9]

[edit] References

  1. ^ Winkler, Adam. A Revolution Too Soon: Woman Suffragists and The "Living Constitution". 76 NYULR 1456, 1463 ("Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.")
  2. ^ McBain, Howard Lee (1937) The Living Constitution. The Macmillan company.
  3. ^ Winkler at 1457
  4. ^ Trop v. Dulles, 356 U.S. 86 (1958)
  5. ^ Amann, Diane Marie (2006). International Law and Rehnquist-Era Reversals. 94 Georgetown Law Journal 1319 ("Living-Constitution doctrines require the Court to render a decision faithful both to constitutional history and to contemporary circumstance. Seldom will the words of a provision--particularly of an open-textured term like "due process," "cruel and unusual," or, for that matter, "unreasonable" -- prove the final authority. The doctrines thus invite judges to consult additional sources.")
  6. ^ Sunsetin, Cass (2006). Of Snakes and Butterflies: A Reply. 106 Columbia Law Review 2234. ("In the last decade and more, some (of course very far from all) conservative judges have been reading the Constitution in a way that lines up uncomfortably well with their own political views: to invalidate affirmative action programs, campaign finance laws, and restrictions on gun control; to strike down certain laws protecting the environment and forbidding discrimination on the basis of disability and age; to protect commercial advertising; to permit discrimination on the basis of sex and sexual orientation; to allow government to provide financial and other assistance to religious institutions; to give the President broad, unilateral authority to fight the war on terror; and to contain no right of reproductive choice or sexual liberty. No one doubts that some of these readings of the Constitution are reasonable. But Radicals in Robes was partly designed to show that, for all the talk of "strict construction," and for all the insistence on distinguishing between law and politics, we are in the midst of a period in which some prominent conservatives are attempting to use judicial power for their own political ends. To be sure, judges almost always act in good faith. But it is nonetheless true that references to history, and to the views of the Framers and ratifiers, are sometimes a fraud and a façade.")
  7. ^ Sunstein 106 CLMR 2234, 2236 ("The Constitution does not set out the instructions for its own interpretation. A theory of interpretation has to be defended, rather than asserted, and the defense must speak candidly in terms of the system of constitutional law that it will yield.")
  8. ^ Peter Lattman (2006-02-14). Scalia Assails Living Constitutionalists. Wall Street Journal Law Blog. Retrieved on March 28, 2007.
  9. ^ Supreme Court of Canada, in its ruling, Re: Same-Sex Marriage, December 2004

[edit] External links

[edit] See also

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