Constitution: A Living, Breathing Document, Why?

The idea of a living and breathing constitution is a viewpoint that a constitution holds a dynamic meaning and should evolve, change over time, and adapt to new circumstances, even if the document is not formally amended. Proponents of this view argue that the constitution was written in broad and flexible terms to accommodate social or technological change over time. They believe that the constitution should be interpreted in light of modern needs and problems and that it is a tool for governments to use to develop society. Opponents of this view, known as originalists, argue that the constitution is a democratically adopted legal document that does not change and that allowing judges to change its meaning undermines democracy.

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The constitution as a living document is not controversial

The idea of a "living Constitution" is that it evolves, adapts to new circumstances, and changes over time without being formally amended. This is particularly relevant in the case of the US Constitution, which was adopted over 200 years ago and has only been amended a few times since, with most of the significant amendments being made in the wake of the Civil War. In the intervening years, the world has changed in countless ways, from technological advancements to shifts in social mores, and the US has grown in territory and population.

The concept of a living Constitution is not without controversy, with some arguing that it undermines democracy and that legislative action better represents the will of the people in a constitutional republic. Opponents of the idea, known as originalists, believe that the Constitution should be interpreted based on the original intent of its framers and that any changes should be made through a formal amendment process. They argue that a living Constitution would reflect the preferences of the current political majority and thus fail to protect political minorities, which is a central purpose of the Constitution.

However, the notion that the Constitution is a living document is not inherently controversial. Most interpretations of the Constitution as a living document are not far-fetched and do not involve significant departures from the original text. For example, the interpretation of "papers and effects" in the Fourth Amendment to include electronic documents and emails is a reasonable adaptation to modern technology that does not alter the underlying principle. Additionally, the framers of the Constitution were trained lawyers and legal theorists who were likely aware of the potential for confusion due to the lack of a clear interpretive method. As such, they may have deliberately written the document in broad and flexible terms to accommodate future social and technological changes.

Furthermore, the US Constitution is not the only example of a living constitution. The British constitution, for instance, is considered a living constitution due to its dependence on statute law and the influence of the Supreme Court of the United Kingdom. Similarly, the Constitution of India is also viewed as a living and breathing document. While there may be disagreements over specific interpretations, the idea that the US Constitution can and should adapt to societal needs and changes over time is not inherently controversial.

The constitution is designed to be a living document

The idea of a living constitution is that it is a document that evolves, adapts to new circumstances, and changes over time without being formally amended. The US Constitution, for example, was adopted over 200 years ago, and while it can be amended, the process is difficult. In that time, the world has changed in ways that could not have been foreseen when the Constitution was drafted. The nation's territory has grown, its population has multiplied, and technology, the economy, and social mores have all changed.

The concept of a living constitution is associated with the view that the document should develop alongside society's needs, providing a more malleable tool for governments. Proponents of this view argue that the framers of the Constitution specifically wrote it in broad and flexible terms to create a dynamic, "living" document. They contend that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable, and that an evolving interpretation is needed. For example, the constitutional requirement of "equal rights" should be read with regard to current standards of equality, not those of decades or centuries ago.

The British constitution, on the other hand, is considered a living constitution due to its dependence on statute law and the influence of the Supreme Court of the United Kingdom. It is not derived from a single written document and can be amended with a simple majority vote. After World War II, for instance, a human-rights-based philosophy became profoundly influential in creating a new international legal order that the United Kingdom conformed to.

The Constitution of India is also considered a living and breathing document.

Opponents of the living constitution theory, often referred to as "originalists", argue that the Constitution should not change and that its original intent should be maintained. They believe that the Constitution is a democratically adopted legal document that acts as "a rock to which the republic is anchored". Originalists argue that the Constitution should be interpreted according to what its authors understood it to mean when it was written, and that allowing judges to change its meaning undermines democracy. They contend that legislative action, rather than judicial decisions, better represents the will of the people in a constitutional republic.

Some critics of the living constitution theory also argue that it is a form of judicial activism, where the meaning of the Constitution is determined by the majority of the people, which goes against its intended purpose of protecting the political minorities from the whims and passions of the political majority.

The constitution cannot protect minorities if it's a living document

The idea of a "living and breathing" constitution is a viewpoint that the US constitution is a dynamic document that evolves and changes over time to accommodate society's needs. It is argued that the framers of the constitution wrote it in broad and flexible terms to create a dynamic, "living" document. This is in contrast to "originalism", which states that the constitution means what the people who adopted it understood it to mean and does not need to adapt or change.

However, if the constitution is interpreted as a living document, it cannot systematically protect political minorities. This is because a living constitution reflects the preferences of the current political majority. The basic purpose of the constitution is to protect political minorities from the whims and passions of the political majority.

Originalists argue that the constitution is a democratically adopted legal document that does not change and acts as a "rock to which the republic is anchored". They believe that the constitution should not be interpreted in light of modern needs and problems but instead should be followed as it was originally intended. Originalists argue that the constitution was written with only essential principles to allow for flexibility in accommodating times and events.

The counterargument to the living constitution theory is that legislative action, rather than judicial decisions, better represents the will of the people in a constitutional republic. Periodic elections allow individuals to vote on their representatives, and members of Congress should be responsive to the views of their constituents. However, proponents of the living constitution argue that the framers of the constitution were aware of the debates and confusion that would arise from not providing a clear interpretive method.

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Originalism is the antithesis of a living constitution

Originalism is a theory of constitutional interpretation that holds that the text of the Constitution should be interpreted based on its original public meaning at the time it became law. It argues that the Constitution has a fixed, static meaning that does not change over time. Originalists believe that the Constitution should be understood based on what it says, without considering evolving societal standards or contemporary contexts. This view is in direct opposition to the concept of a living constitution, which asserts that the Constitution is a dynamic document that evolves and adapts to new circumstances and societal needs without formal amendments.

Proponents of a living constitution argue that it is necessary for the document to change and develop alongside society. They contend that the constitutional framers intentionally wrote the Constitution in broad and flexible terms to accommodate social and technological advancements. By interpreting the Constitution in light of modern contexts, supporters of a living constitution believe that it can address current issues and reflect the needs of a diverse and evolving society. This interpretation allows for a more malleable tool for governments to navigate complex situations.

In contrast, originalists argue that the Constitution should be interpreted based solely on its original meaning. They believe that the document, as adopted in the 1790s or 1860s, should be understood and applied as it was originally intended. Originalists contend that there is no need for the Constitution to adapt or change beyond formal amendments. This perspective, however, struggles to address Thomas Jefferson's question: why should the commands of people from long ago, who lived in a different world, dictate fundamental questions about our government and society today?

The debate between originalism and a living constitution has significant implications for constitutional interpretation. Originalism emphasizes fidelity to the original understanding of the Constitution, while a living constitution embraces the dynamic nature of societal evolution and the need for the document to adapt accordingly. This contrast is exemplified by the differing views on racial segregation. Originalists believe that the Fourteenth Amendment always forbade racial segregation, while living constitutionalists argue that it was considered constitutional from 1877 to 1954 due to public opinion and changed only as a result of the Supreme Court decision in Brown v. Board of Education.

In conclusion, originalism and the concept of a living constitution represent opposing viewpoints on constitutional interpretation. Originalism prioritizes the static meaning of the Constitution as it was originally understood, while a living constitution advocates for a dynamic document that evolves with societal changes. The tension between these perspectives reflects the ongoing debate between upholding the original intent of the framers and adapting the Constitution to meet the evolving needs of a diverse and changing society.

The UK and US have different living constitutions

The US Constitution, a document from the 18th century, is the 'supreme law' of the country. It is a written constitution that is 'entrenched', meaning it is hard to amend and thus difficult to change. The US Constitution has remained largely intact since 1787, and amendments are infrequent. The US Constitution provides for extensive checks and balances to prevent executive domination. The Capitol building in Washington, DC, with its unified design in the neoclassical style, is an apt metaphor for the unity and integrity of the US Constitution.

The UK, on the other hand, has an unwritten constitution, with its core aspects spread across various sources. The UK constitution is not entrenched, and thus it is flexible and easier to amend, requiring only a simple majority vote in Parliament. The UK constitution has evolved over time, with origins in the medieval period, and has continued to change significantly over the last two centuries. The Palace of Westminster, with its mix of old and new, can be seen as a metaphor for the UK's flexible and evolving constitution.

The UK constitution is often described as 'living', as it adapts to new circumstances and is influenced by statute law and the Supreme Court. The UK constitution can be altered relatively easily by the government of the day, and thus it changes more frequently than the US Constitution. The UK Parliament is considered ''sovereign', with the power to make or unmake any law without being limited by a constitutional text.

The US Constitution, however, is seen as a fixed document by some, particularly those holding the ''originalist' view, who believe that the Constitution should be interpreted based on the original intent of its framers. Opponents of the 'living Constitution' theory argue that it undermines democracy and that legislative action better represents the will of the people.

The UK and US constitutions also differ in their approach to rights and liberties. The US Constitution entrenches rights and liberties, such as the Second Amendment right to 'keep and bear arms'. In contrast, the UK's rights can be changed by statute law, as seen with the ban on handguns after the Dunblaine school shooting.

In summary, the UK and US constitutions differ significantly in their nature, structure, and approach to change. The UK's unwritten, flexible, and evolving constitution contrasts with the US's written, entrenched, and relatively fixed constitution. These differences result in varying levels of adaptability and frequency of change, with the UK's constitution being more dynamic and the US's more stable and consistent.

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